Hudson v. Ark. Dep't of Human Servs.

2017 Ark. App. 629

• Court: Court of Appeals of Arkansas
• Decided: November 15, 2017
• Docket: CV-17-630
• Status: Published

Opinion

Cite as 2017 Ark. App. 629

ARKANSAS COURT OF APPEALS DIVISION II No. CV-17-630

Opinion Delivered: November 15, 2017 JOANNA HUDSON APPELLANT APPEAL FROM THE CARROLL COUNTY CIRCUIT COURT, V. EASTERN DISTRICT [NO. 08EJV-16-34] ARKANSAS DEPARTMENT OF HUMAN SERVICES AND MINOR CHILD HONORABLE SCOTT JACKSON, APPELLEES JUDGE AFFIRMED

MIKE MURPHY, Judge

Appellant Joanna Hudson appeals the May 4, 2017 order of the Carroll County

Circuit Court terminating her parental rights to her minor child, H.G. She argues that the

circuit court erred in granting the termination-of-parental-rights petition because appellee

Arkansas Department of Human Services (DHS) failed to present sufficient evidence that

termination was in H.G.’s best interest. 1 We affirm.

On July 20, 2016, DHS filed a petition for emergency custody and dependency-

neglect, alleging that then three-year-old H.G. was dependent-neglected as a result of abuse,

neglect, and parental unfitness to the juvenile. The affidavit attached to the petition alleged

that on July 16, 2016, DHS received a call from the Carroll County Sheriff’s Office in regard

1 H.G.’s legal father was not present at the termination hearing; the termination order directed that the style of the case be changed to “DHS v. Justin Gatlin” and that the clerk accept filings under that style. Cite as 2017 Ark. App. 629

to a juvenile, H.G., with second-degree burns on the inside of her thighs. The officer stated

that the mother (appellant) was being arrested for an outstanding warrant. Appellant was

then screened for drugs at the Carroll County Detention Center where she tested positive

for methamphetamine, amphetamine, THC, and benzodiazepines. The affidavit also noted

the history this family has had with DHS including a true finding for inadequate supervision

in 2001 relating to appellant’s two other children, as well as a true finding for inadequate

supervision in 2013 regarding H.G., when appellant was arrested for public intoxication and

possession of methamphetamine. 2 An emergency order was entered on July 21, 2016. The

court found that immediate removal of H.G. from appellant was in the best interest of the

juvenile and was necessary to protect her health and safety as evidenced by appellant’s illegal

drug use, unconvincing explanation of the injury to H.G., and the arrest of appellant, which

left no legal caretaker for H.G.

Appellant did not appear at the probable-cause hearing, and the circuit court ordered

that H.G. remain in DHS custody. On October 3, 2016, DHS filed a petition for

termination of parental rights. The petition alleged multiple grounds and stated that

subsequent to removal, H.G. disclosed allegations of abuse and sexual abuse by her mother

and her mother’s male friend. On November 3, 2016, H.G. was adjudicated dependent-

neglected. Per the adjudication order, the case-plan goal remained reunification, yet the

circuit court authorized service of the termination-of-parental-rights petition by warning

order.

2 In that case, H.G. was placed in foster care, and appellant completed the case plan and eventually regained custody.

2 Cite as 2017 Ark. App. 629

On February 16, 2017, the circuit court conducted the termination-of-parental-

rights hearing and appellant appeared by telephone. At the conclusion of the hearing, the

circuit court left the record open in order to give appellant an opportunity to consider the

testimony presented and to decide if she wanted to voluntarily terminate her rights. The

circuit court stated that the case would be recessed and heard again on March 16, 2017. On

March 2, 2017, DHS filed an amended petition for termination, which alleged the

abandonment ground; the criminal-sentence-for-a-substantial-period ground; and the

aggravated-circumstances ground. The case was then continued to May 4, 2017. Thereafter,

on April 28, 2017, appellant filed a letter explaining that she was doing everything she could

at the Arkansas Department of Correction (ADC) and that she did not want her rights

terminated; she also requested visitation with H.G.

On May 4, 2017, the circuit court terminated appellant’s parental rights pursuant to

the subsequent-factors ground; aggravated circumstances (including chronic abuse, sexual

abuse, and little likelihood that services to the family would result in successful

reunification); and the fact that appellant was currently serving a sentence in a criminal

proceeding for a period of time that would constitute a substantial period of H.G.’s life. The

circuit court also found that termination was in H.G.’s best interest as she would be at risk

of potential harm if returned to appellant due to H.G.’s credible disclosure of physical and

sexual abuse by appellant; appellant’s past substance abuse and indifference to remedy it;

appellant’s lack of contact with DHS since the case had been filed; indifference to remedy

the cause for removal; and appellant’s current incarceration. This timely appeal followed.

3 Cite as 2017 Ark. App. 629

We review termination-of-parental-rights cases de novo. Lively v. Ark. Dep’t of

Human Servs., 2015 Ark. App. 131, at 4–5, 456 S.W.3d 383, 386. On appeal, the inquiry is

whether the circuit 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 appellate court, on the entire evidence, is left with a definite and

firm conviction that a mistake has been made. Id. We give a high degree of deference to

the circuit court, as it is in a far superior position to observe the parties before it and judge

the credibility of the witnesses. Id.

The termination-of-parental-rights analysis is twofold; it requires the circuit court to

find that the parent is unfit and that termination is in the best interest of the child. The first

step requires proof of one or more of the nine enumerated statutory grounds for termination.

Ark. Code Ann. § 9-27-341(b)(3)(B) (Repl. 2015). The best-interest determination must

consider the likelihood that the children will be adopted and the potential harm caused by

returning custody of the children to the parent. Ark. Code Ann. § 9-27-341(b)(3)(A). The

court, however, does not have to determine that every factor considered be established by

clear and convincing evidence. Spencer v. Ark. Dep’t of Human Servs., 2013 Ark. App. 96, at

5–6, 426 S.W.3d 494, 498. Instead, after considering all the factors, the evidence must be

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

On appeal, appellant challenges only the circuit court’s best-interest finding. She does

not challenge the grounds for termination and therefore waives that issue on appeal.

In determining the best interest of the child, the circuit court should consider factors

such as the likelihood of adoption and the potential harm to the health and safety of a child

4 Cite as 2017 Ark. App. 629

if subjected to continuing contact with the parent. Ark. Code Ann. § 9-27-341(b)(3)(A)(i),

(ii). Parental rights will not be enforced to the detriment of the health and well-being of the

child. Christian-Holderfield v. Ark. Dep’t of Human Servs., 2011 Ark. App. 534, at 7–8, 378

S.W.3d 916, 920. The court is not required to find that actual harm would result or to

affirmatively identify a potential harm. Jones v. Ark. Dep’t of Human Servs., 2017 Ark. App.

125, at 11–12, 515 S.W.3d 151, 158. Furthermore, the supreme court has directed that the

potential-harm analysis be conducted in broad terms. Id.

Appellant does not challenge the circuit court’s adoptability finding. She does,

however, challenge the circuit court’s potential-harm finding. Appellant asserts that the

caseworker’s testimony that appellant had not complied with the case plan and that her

behavior had not changed is purely speculative. Appellant claims that the caseworker lacked

any personal knowledge about appellant’s compliance with the case plan. Appellant claims

that there was no indication that she was aware of the case plan or that one was ever provided

to her. We disagree.

We find that clear and convincing evidence supports the circuit court’s conclusion

that termination of appellant’s parental rights was in H.G.’s best interest based on the

following facts. In her testimony, appellant conceded that “she figured there had been [a

case plan], but [she] ran on the 19th of July,” three days after H.G. had been removed from

her custody. She did nothing to contact H.G. until she was eventually arrested and

incarcerated on December 2, 2016. She testified that she wrote a letter from ADC and had

H.G.’s paternal grandmother notify DHS that appellant was in jail. When asked what she

was currently doing to get custody back, she answered that she was taking care of her legal

5 Cite as 2017 Ark. App. 629

issues. Moreover, it is undisputed that H.G. was sexually abused by appellant. The record

revealed testimony of a forensic interviewer who testified regarding H.G.’s disclosure of the

sexual abuse, and the DHS caseworker’s testimony confirmed that the allegations of sexual

abuse were true. In Blanchard v. Arkansas Department of Human Services, 2012 Ark. App. 215,

at 10, 395 S.W.3d 405, 410, we explained, “It would seem obvious that [children] would

face potential harm if placed back in the custody of a father who has been found to have

sexually abused one of them.”

Lastly, this is appellant’s second attempt at maintaining sobriety and having custody

of H.G. She cannot currently seek custody because she is still incarcerated, serving a five-

year sentence—a sentence longer than the amount of time H.G. has been alive. We have

held that past behavior is correctly viewed as a predictor of potential harm that may likely

result if a child is returned to the parent’s custody. Jones, 2017 Ark. App. 125, at 12, 515

S.W.3d at 158. Living in continued uncertainty is, itself, potentially harmful to children. Id.

Testimony revealed that appellant cannot provide permanency to H.G. in a reasonable

period of time as viewed from the child’s perspective. Accordingly, we hold that the circuit

court did not clearly err in finding that termination of appellant’s parental rights was in

H.G.’s best interest.

Affirmed.

ABRAMSON and BROWN, JJ., agree.

Dusti Standridge, for appellant.

Mary Goff, Office of Chief Counsel, for appellee.

Chrestman Group, PLLC, by: Keith L. Chrestman, attorney ad litem for minor child.