Fox v. Arkansas Department of Human Services

2014 Ark. App. 666, 448 S.W.3d 735, 2014 Ark. App. LEXIS 973
CourtCourt of Appeals of Arkansas
DecidedNovember 19, 2014
DocketCV-14-622
StatusPublished
Cited by39 cases

This text of 2014 Ark. App. 666 (Fox 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
Fox v. Arkansas Department of Human Services, 2014 Ark. App. 666, 448 S.W.3d 735, 2014 Ark. App. LEXIS 973 (Ark. Ct. App. 2014).

Opinion

PHILLIP T. WHITEAKER, Judge. .

|,Appellant Tiffany Fox appeals the order of the Benton County Circuit Court terminating her parental rights to her son, D.C. 1 Her primary argument on appeal is that the circuit court erred in finding that termination was in the best interest of D.C.; specifically, she contends that there was insufficient evidence that D.C. would be subject to potential harm if returned to her custody. We find no error and affirm.

Our standard of review in termination-of-parental-rights eases is well settled. When the issue is one involving the termination of parental rights, there is a heavy burden placed upon the party seeking to terminate the relationship. Stockstill v. Ark. Dep’t of Human Servs., 2014 Ark. App. 427, 439 S.W.3d 95; Osborne v. Ark. Dep’t of Human Servs., 98 Ark.App. 129, 252 S.W.3d 138 (2007). Termination of parental rights is an extreme remedy and in derogation of the natural rights of the parents. Stockstill, supra. Parental rights, however, will not be enforced to the detriment or destruction of the health and well-being of the child. Id. With these standards in mind, we turn to the facts of this case.

The. Arkansas Department of Human Services exercised an emergency hold on five-year-old D.C. in March 2013, the day after his infant brother, N.F., was killed by Tiffany’s husband, Travis Fox. Travis was also accused of killing another of Tiffany’s infant sons, T.F., in 2011. 2 The circuit court adjudicated D.C. dependent-neglected six months later. The bases for adjudication were Travis’s confession that he caused the deaths of D.C.’s siblings by physical abuse, Tiffany’s failure to take reasonable action to protect N.F. from physical abuse by Travis, and her failure to adequately supervise D.C. and N.F. by leaving them in Travis’s care. The court concluded that the existence of the potential for abuse was known or should have been known by Tiffany, and her failure to supervise “placed both juveniles at risk of harm and resulted in the death of N.F.” The court further found that return of custody to Tiffany was not in the best interest of the child. In reaching this conclusion, the court looked to the opinion testimony of Dr. Martin Faitak. Dr. Fai-tak stated that returning D.C. to Tiffany’s care would be “actively dangerous for the juvenile,” due to Tiffany’s borderline personality disorder and her inability to recognize the reality of situations. | aHowever, the court did set the goal of the case as reunification at that time and ordered DHS to provide services to Tiffany.

Subsequent to adjudication, the court took periodic review of the services provided and Tiffany’s progress toward the goal of reunification. By court order, DHS provided the services of counseling, parenting classes and domestic-violence classes. With regard to counseling, Tiffany began her sessions but did not make significant progress in therapy. Tiffany completed parenting classes and had been attending domestic-violence classes. Despite this attendance, however, an incident occurred wherein the Rogers Police Department received a disturbance call from Tiffany’s boyfriend, Aaron Mcabee, that she had choked him during an altercation. As a result of Tiffany’s limited progress, the court changed the goal to adoption at permanency planning.

DHS filed its petition for termination of parental rights in March 2014, alleging four statutory grounds. 3 The petition also alleged that D.C. was adoptable 4 and that he was at high risk of potential harm if returned to Tiffany because she had not accomplished her case goals and “continue[d] to be emotionally unstable, continue[d] to engage in dangerous behavior, and ... demonstrated little insight into her behaviors which put D.C. at risk.”

Following a hearing, the circuit court found that DHS had established the necessary statutory grounds and that termination was in D.C.’s best interest. With regard to the |4potential harm of returning D.C. to Tiffany’s custody, the court found not only that Tiffany had not accomplished her case plan goals, but also that she “continues to be emotionally unstable, continues to engage in dangerous behavior, and has demonstrated little insight into her behaviors which put D.C. at risk.” It is from the court’s termination order that Tiffany brings the instant appeal. Tiffany’s primary argument on appeal is that the circuit court clearly erred in finding that D.C. would be subject to potential harm if he were returned to her custody.

Termination of a parent’s rights must be based on clear and convincing evidence that it is in the best interest of the child, considering the likelihood that the child will be adopted if the parent’s rights are terminated and the potential harm caused by returning the child to the custody of the parent. Weatherspoon v. Ark. Dep’t of Human Servs., 2013 Ark. App. 104, 426 S.W.Sd 520; Ark.Code Ann. § 9-27-341(b)(3)(A). Clear and convincing evidence is the degree of proof that will produce in the fact-finder a firm conviction regarding the allegation sought to be established. Stockstill, supra. When the burden of proving a disputed fact in equity is by clear and convincing evidence, the question that we must answer on appeal is whether the trial court’s finding that the disputed fact was proved by clear and convincing evidence is clearly erroneous. Id. 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. Additionally, we have noted that in matters involving the welfare of young children, we will give great weight to the trial judge’s personal observations. Id.

| fiWe conclude that the trial court correctly found that D.C. would be subject to potential harm if returned to Tiffany. Dr. Karen Farst opined that the injuries sustained by D.C.’s siblings at or around-the times of their deaths were not injuries that one would expect to find in non-ambulatory infants, and, moreover, they were injuries that would certainly be noticeable to a caregiver. In response, Tiffany denied ever seeing bruises or other injuries on either child. She acknowledged Dr. Farst’s testimony that the injuries would have been visible to the children’s caretaker, but she maintained that she did not see any bruises on the children except for one on N.F.’s head that she said he had caused himself. We must give due regard to the opportunity of the trial court to judge the credibility of witnesses. Id. Accordingly, we find no error in the court’s conclusion that Tiffany demonstrated little insight into her behaviors that put D.C. at risk.

Likewise, we find no error in the court’s conclusion that Tiffany continued to be emotionally unstable. Dr. Faitak performed two psychological exams on Tiffany: one in April 2013 and another in March 2014. After his first examination, Dr. Faitak felt that Tiffany was unstable and that it would be “actively dangerous” for her to have children with her. Given her diagnosis of borderline personality disorder, Dr. Faitak recommended that D.C. not be placed with Tiffany until she admitted to her problems and her need for help.

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Bluebook (online)
2014 Ark. App. 666, 448 S.W.3d 735, 2014 Ark. App. LEXIS 973, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fox-v-arkansas-department-of-human-services-arkctapp-2014.