Frances Perry v. Arkansas Department of Human Services and Minor Children

2021 Ark. App. 193, 625 S.W.3d 374

• Court: Court of Appeals of Arkansas
• Decided: April 28, 2021
• Status: Published

Opinion

Cite as 2021 Ark. App. 193 Elizabeth Perry ARKANSAS COURT OF APPEALS I attest to the accuracy and integrity of this document DIVISION IV No. CV-20-667 2023.06.26 15:51:22 -05'00' 2023.001.20174 Opinion Delivered: April 28, 2021

FRANCES PERRY APPELLANT APPEAL FROM THE MISSISSIPPI COUNTY CIRCUIT COURT, V. CHICKASAWBA DISTRICT [NO. 47BJV-18-45] ARKANSAS DEPARTMENT OF HUMAN SERVICES AND MINOR CHILDREN HONORABLE RALPH WILSON, JR., APPELLEES JUDGE AFFIRMED

BART F. VIRDEN, Judge

The Mississippi County Circuit Court terminated appellant Frances Perry’s parental

rights to her two children, S.P. and T.P. On appeal, Frances argues that the trial court erred

in terminating her rights because there was insufficient evidence of grounds and because

termination was not in her children’s best interest. We affirm.

I. Background

On May 1, 2018, the Arkansas Department of Human Services (DHS) filed a petition

for emergency custody and dependency-neglect as to S.P. and T.P. In an affidavit attached

to the petition, a family-service worker attested that the sheriff’s office had called DHS on

April 27 to report that, while doing a welfare check, it was discovered that the home in

which S.P. and T.P. resided “wasn’t in livable conditions.” When the service workers went

to that home, which belonged to Robert Perry, S.P. and T.P.’s father, they discovered that there was trash piled up in the kitchen, there were dog feces on the floor, and there were

no beds for S.P. and T.P., who were then ages thirteen and eight, respectively. Robert was

described as “irate” and tested positive for amphetamines and methamphetamine. The

children were taken into DHS custody. Frances’s contact information was “unknown.”

In a probable-cause order dated May 11, 2018, it was noted that Frances was living

in Missouri and must come to Arkansas to receive services. She was ordered to comply with

standard welfare orders, including that she remain drug-free, submit to random drug screens,

obtain and maintain safe and stable housing, obtain stable employment, and cooperate with

DHS. On June 20, 2018, the children were adjudicated dependent-neglected based on

environmental neglect and neglect due to Robert’s drug use. The trial court noted that

Frances had not contributed to the dependency-neglect, but it also found that she was not

a fit parent for purposes of custody.

In a review order entered September 27, 2018, the trial court noted that Frances had

partially complied with the case plan in that she had watched the video “The Clock Is

Ticking” and had participated in most visitations; however, Frances was not employed and

continued to reside outside of Arkansas where services were difficult to provide. Another

review order was entered January 9, 2019, finding that Frances had complied with the case

plan and that she was employed. A permanency-planning order was entered May 6, 2019,

in which the trial court found that Frances had complied with the case plan and court orders

in that she had completed parenting classes, was employed, and had recently obtained

housing. The trial court found that, while Frances had tested positive for opiates,

methamphetamine, and amphetamines on January 25, 2019, she had since tested negative.

2 In a fifteen-month review order entered June 21, 2019, the trial court noted that

Robert had died. The trial court found that, while the goal at the permanency-planning

stage had been reunification or APPLA (another planned permanent living arrangement),

the goal of the case should be changed to adoption. The trial court found that Frances had

not complied with the case plan in that she “continues to use controlled substances, having

tested positive as recently as May 9, 2019”; she was not visiting the children regularly; and

she had only recently obtained housing and started substance-abuse treatment. Another

review order was entered November 7, 2019, in which the trial court found that Frances

had partially complied with the case plan but that she had had minimal contact with the

children since the last hearing and was residing out of state “with her paramour.” On the

same day, DHS filed a petition for termination of Frances’s parental rights. The termination

hearing was scheduled but continued several times. On July 22, 2020, a hearing was held.

Sharon Washington, a DHS caseworker, testified that Frances lived in Arkansas from

September 2018 until January 2019 when she chose to move to Missouri. Washington stated

that DHS had offered to assist Frances with locating housing in Arkansas but that Frances

had declined. She said that, during the pendency of the case, Frances had had at least seven

residences. Washington testified that she had been informed the day before the hearing that

Frances had found stable housing through an organization in Missouri, that Frances had not

yet moved into the home, and that she had been in transitional housing for the last two or

three weeks.

Washington testified that Frances periodically tested positive for methamphetamine

and amphetamines, as recently as February 19, 2020. She said that Frances had requested

3 that a hair-follicle test be done to prove the drug test was wrong and that DHS had scheduled

that testing. Washington said that Frances did not attend on the scheduled date, that she

offered numerous excuses for not being able to take the test thereafter, including that she

was living in Tennessee for a month as a result of the COVID-19 lockdown, and that she

did not ultimately submit to a hair-follicle test. Washington testified that she could not assist

Frances with services across state lines. She said that Frances had told her that she had been

receiving services in Missouri but had not provided any documentation, except from the

Stapleton Center, indicating that Frances had begun drug treatment.

Washington testified that the foster parents wanted to adopt T.P. but were not as

certain when it came to adopting S.P. She stated, however, that there was nothing to prevent

both children from being adopted.

Frances conceded that she had had at least nine residences over the last two years.

She testified that she had moved away from Arkansas in early 2019 to get away from other

drug users but that it had not turned out to be any better in Missouri because she continued

to use methamphetamine. Frances said that she had lived with people who “weren’t all that

great” and that she would not want her children to be associating with those people.

Frances testified that she was living only thirty miles from Blytheville and that DHS

had offered to take her from Blytheville to the hair-follicle test she requested. She said that

she could not make the scheduled date because her friend did not have the gas to get there

or had something to do during that time. She said that DHS had offered to take her to the

test on another date that was convenient for her but that she could not find an available

date. She testified that she currently goes to Breakthrough Recovery meetings every night

4 and goes to church and Bible study three days a week. Frances said that it had been a couple

of months since she had last used her drug of choice: methamphetamine. She later said that

she had not used methamphetamine since February 2020. Frances said that she had been

receiving services in Missouri “off and on for a year” but that she had only “continuously”

participated in the Breakthrough Recovery program since May 2020.

Frances said that Missouri DAEOC (Delta Area Economic Opportunity

Corporation) was helping her with the first six months’ rent for her current housing and

assisting her to pay her bills. She testified that she is currently living in transitional housing,

that her house would be available that day or maybe the next day, and that she has beds and

bedding for the children. Frances said that she is ready for S.P. and T.P. to come home with

her; however, later in her testimony she stated that she needs “a little bit more time” in

recovery away from her “usual crowd” and additional time to get the services she needs to

be the mother she wants to be. Frances said that she realizes her children have been in foster

care for two years.

Jennifer Towe, employee of the Workforce Development Board of Missouri

stationed at Family Counseling Center, testified that Frances had been in and out of the

Breakthrough Recovery program for a year, that she had come back in May 2020, and that

she had gotten Frances in transitional housing on June 24. She said that Frances was “doing

very well actually” and that her last urine drug screen on July 13 was negative. Asked if

Frances is ready to take her children home with her that day, Towe testified that Frances

needs a couple of weeks. She said that Frances will have housing for six months, which will

be reviewed in another six months, but that Frances has to meet requirements in order to

5 maintain the housing; specifically, she must remain drug free. Towe said of Frances, “I do

think she’s committed to staying on track. I believe so. We had a very long heart to heart.”

She conceded that Frances does not have a very good track record but said that she thinks

anybody can change.

An order terminating Frances’s parental rights was entered August 27, 2020. The trial

court found the following grounds for termination under Ark. Code Ann. § 9-27-

341(b)(3)(B) (Repl. 2020): (i)(a) (twelve-month failure to remedy); (vii)(a) (subsequent

factors); and (ix)(a)(3)(A)-(B)(i) (aggravated circumstances - little likelihood). The trial court

also found that termination was in the children’s best interest. The trial court noted that the

children are adoptable and that potential harm could come to them if placed in Frances’s

custody due to her continued use of methamphetamine, her association with known drug

addicts, and her lack of housing and support. Frances timely filed a notice of appeal.

II. Standard of Review

In order to terminate parental rights, a trial 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. Ark. Code Ann. § 9-27-

341(b)(3)(A)(i) & (ii). The trial court must also find by clear and convincing evidence that

one or more statutory grounds for termination exists. Ark. Code Ann. § 9-27-341(b)(3)(B).

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

Human Servs., 2015 Ark. App. 119. The appellate inquiry is whether the trial court’s finding

6 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. Williams v. Ark. Dep’t of Human Servs., 2013 Ark. App. 622. In resolving the

clearly erroneous question, we give due regard to the opportunity of the trial court to judge

the credibility of witnesses. Camarillo-Cox v. Ark. Dep’t of Human Servs., 360 Ark. 340, 201

S.W.3d 391 (2005).

Termination of parental rights is an extreme remedy and in derogation of the natural

rights of parents, but parental rights will not be enforced to the detriment or destruction of

the health and well-being of the child. Friend v. Ark. Dep’t of Human Servs., 2009 Ark. App.

606, 344 S.W.3d 670. In deciding whether to terminate the parental rights of a parent, the

trial court has a duty to look at the entire picture of how that parent has discharged his or

her duties as a parent. Id. The purpose of the termination-of-parental-rights statute, Ark.

Code Ann. § 9-27-341(a)(3), is to provide permanency in a child’s life in all instances in

which the return of a child to the family home is contrary to the child’s health, safety, or

welfare, and it appears from the evidence that a return to the family home cannot be

accomplished in a reasonable period of time, as viewed from the child’s perspective. Even

full compliance with the case plan is not determinative; the issue is whether the parent has

become a stable, safe parent able to care for his or her child. Shaffer v. Ark. Dep’t of Human

Servs., 2016 Ark. App. 208, 409 S.W.3d 182.

7 III. Discussion

A. Grounds

Frances argues that the twelve-month failure-to-remedy ground cannot apply to her

because she was not the custodial parent from whose custody the children were removed.

We agree that this ground did not apply; however, proof of only one statutory ground is

sufficient to terminate parental rights. Sharks v. Ark. Dep’t of Human Servs., 2016 Ark. App.

435, 502 S.W.3d 569. The trial court also found that Frances had subjected the children to

aggravated circumstances, meaning that the trial court determined that there was little

likelihood that services would result in successful reunification. Ark. Code Ann. § 9-27-

341(b)(3)(B)(ix)(a)(3)(A)-(B)(i). There must be more than a mere prediction or expectation

on the part of the trial court that reunification services will not result in successful

reunification. Yarborough v. Ark. Dep’t of Human Servs., 96 Ark. App. 247, 240 S.W.3d 626

(2006).

Frances argues that, if DHS had provided her services without requiring her to move

to Arkansas, she could have obtained drug treatment and housing earlier on in the case. She

argues that, despite the lack of help from DHS, she was able to obtain services on her own

in Missouri. She asserts that, at the time of the termination hearing, she had “months of

sobriety, a support system, employment and a home.” Frances argues that it would be

speculative to say that a critical service such as transportation would not have resulted in

successful reunification because she was not offered this service in the form of cash assistance.

The aggravated-circumstances ground does not require that DHS prove that

meaningful services toward reunification were provided. See, e.g., Willis v. Ark. Dep’t of

8 Human Servs., 2017 Ark. App. 559, 538 S.W.3d 842. Nevertheless, Frances was offered

numerous services, including transportation, but she did not take advantage of many of these

services. In fact, she chose to move from Arkansas knowing that DHS would have difficulty

providing services to her across state lines, and she declined DHS’s offer of assistance to find

housing in Arkansas. Frances’s children were in DHS custody for over two years, yet Frances

did not demonstrate that she had achieved stability in that time. She last tested positive for

drugs five months before the termination hearing; she thereafter avoided having a hair-

follicle test that could have proved her claim of sobriety; and she began drug treatment in

Missouri only two months prior to the termination hearing. Moreover, Frances had lived

in at least seven residences when she was not homeless; she was in transitional housing

having signed a lease two days before the termination hearing; and her ability to maintain

her temporary housing depended on her remaining drug free. Frances’s continuation of drug

treatment and acceptance of transitional housing are the type of eleventh-hour efforts that

will not override her children’s need for permanency and stability. See Boomhower v. Ark.

Dep’t of Human Servs., 2019 Ark. App. 397, 587 S.W.3d 231. We cannot say that the trial

court clearly erred in terminating Frances’s parental rights on the basis of aggravated

circumstances.

B. Best Interest

Frances argues that the trial court erred in determining that termination of her

parental rights was in her children’s best interest. Specifically, she contends that there was

absolutely no evidence that she posed “a real risk” of harm to them. In considering potential

harm caused by returning the child to the parent, the trial court is not required to find that

9 actual harm would result or affirmatively identify a potential harm. Welch v. Ark. Dep’t of

Human Servs., 2010 Ark. App. 798, 378 S.W.3d 290. Potential-harm evidence must be

viewed in a forward-looking manner and considered in broad terms. Tillman, supra. A

parent’s past behavior is often a good indicator of future behavior. Shaffer v. Ark. Dep’t of

Human Servs., 2016 Ark. App. 208, 489 S.W.3d 182.

The same evidence that supports the aggravated-circumstances ground of little

likelihood of successful reunification is sufficient to support the trial court’s potential-harm

finding. See, e.g., Kloss v. Ark. Dep’t of Human Servs., 2019 Ark. App. 389, 585 S.W.3d 725.

Frances asserts that she had “conquered” her drug habit. Clearly, the trial court did not

believe her, and we defer to the trial court’s credibility determinations. Camarillo-Cox, supra.

A court report indicates that Frances tested positive for methamphetamine in January, May,

and June 2019 and in February 2020. Frances insisted on having a hair-follicle test but then

avoided the numerous attempts made by DHS to schedule and transport her to the test. We

have held that continued drug use by a parent demonstrates potential harm. Jones v. Ark.

Dep’t of Human Servs., 2016 Ark. App. 615, 508 S.W.3d 897; Jackson v. Ark. Dep’t of Human

Servs., 2016 Ark. App. 440, 503 S.W.3d 122. To her credit, Frances admitted at the

termination hearing that she needed more time with her recovery; however, a child’s need

for permanency and stability may override a parent’s request for additional time. See

Henderson v. Ark. Dep’t of Human Servs., 2010 Ark. App. 191, at 10, 377 S.W.3d 362, 386

(affirming trial court’s determination that termination was in child’s best interest when

mother’s drug rehabilitation was “still a work in progress”).

10 Frances also argues that the trial court failed to consider the sibling relationship

between S.P. and T.P. when determining best interest. She points out that DHS was unsure

regarding the adoptive prospects of S.P. and whether S.P. and T.P. could be adopted

together. According to Frances, the trial court did not consider the impact on the children

if they are separated.

Evidence of a genuine sibling bond is required to reverse a best-interest finding based

on the severance of a sibling relationship. Brown v. Ark. Dep’t of Human Servs., 2019 Ark.

App. 370, 584 S.W.3d 276. Here, there was little to no evidence of the bond shared by S.P.

and T.P., and Frances did not make this particular argument to the trial court. We will not

address arguments raised for the first time on appeal, even in termination cases. Mitjans v.

Ark. Dep’t of Human Servs., 2018 Ark. App. 472, 561 S.W.3d 747. In any event, keeping

siblings together is an important consideration but is not outcome determinative as the best

interest of each child is the polestar consideration. Martin v. Ark. Dep’t of Human Servs., 2020

Ark. App. 192, 596 S.W.3d 98. The separation of S.P. and T.P. was not a foregone

conclusion, and there is no indication that the trial court did not take into consideration the

sibling relationship before making its decision. We cannot say that the trial court clearly

erred in finding that termination of Frances’s parental rights was in her children’s best

interest.

Affirmed.

GLADWIN and WHITEAKER, JJ., agree.

Jennifer Oyler Olson, Arkansas Commission for Parent Counsel, for appellant.

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

appellee.

Dana McClain, attorney ad litem for minor children.