Josue Tovias v. Arkansas Department of Human Services and Minor Child

2020 Ark. App. 337, 601 S.W.3d 161

Opinion

Reason: I attest to the accuracy and integrity of this document Cite as 2020 Ark. App. 337 ARKANSAS COURT OF APPEALS Date: 2021-06-16 14: 19:15 Foxit DIVISION II PhantomPDF No. CV-20-38 Version: 9.7.5 Opinion Delivered: June 3, 2020

JOSUE TOVIAS APPEAL FROM THE WASHINGTON APPELLANT COUNTY CIRCUIT COURT [NO. 72JV-18-95] V.

ARKANSAS DEPARTMENT OF HONORABLE STACEY HUMAN SERVICES AND MINOR ZIMMERMAN, JUDGE CHILD APPELLEES AFFIRMED

PHILLIP T. WHITEAKER, Judge

Josue Tovias appeals from a Washington County Circuit Court order terminating his

parental rights to JT1, born September 25, 2012, arguing that the circuit court erred in

terminating his parental rights because there was insufficient evidence of potential harm to

satisfy the best-interest requirement for termination. We affirm.

I. Facts and Procedural History

We have this appeal for the second time after remand. Tovias v. Ark. Dep’t of Human

Servs., 2019 Ark. App. 228, 575 S.W.3d 621 (“Tovias I”). Although we provided a short

synopsis of the facts in Tovias I, a more detailed recitation of the facts is necessary here.1

1 We note that the facts concerning the removal of JT1 were also discussed in Tovias v. Arkansas Department of Human Services, 2020 Ark. App. 147, 596 S.W.3d 66, (“Tovias II”). Tovias II concerned the termination of Tovias’s parental rights to another child, JT2, who was born on April 30, 2018, after the institution of these proceedings, and who is not a subject of this termination action. In January 2018, Tovias was living with his girlfriend, Melissa Miranda; her son, JT1;

and her four other children.2 During that time, law enforcement began an investigation into

allegations of abuse and neglect of the children within the home. More specifically, the

investigation centered on allegations that one of the children, JF, had been routinely

handcuffed to a desk to prevent him from eating, that a knife had been held to his fingers,

and that he had been reported to be malnourished, underweight, thin, and bloated. He also

had bruises on his wrists and ankles. Both Miranda and Tovias were arrested on charges

related to the abuse and neglect,3 leaving the children without a caregiver. As a result of the

abuse and neglect allegations and the absence of a caregiver, DHS exercised a seventy-two-

hour hold on all the children and filed a petition for emergency custody and dependency.

After the children were removed from the home, the court adjudicated the children

dependent neglected based on the “horrific abuse including routinely handcuffing [JF] to a

desk, starving him, and leaving scars on his arms where he was handcuffed on multiple

occasions, holding a knife to [JF’s] fingers and stating that this is what happens to thieves.”

Initially, the court ordered the goal of the case to be reunification with a concurring goal of

adoption.

DHS subsequently filed a motion to terminate reunification services. The court

agreed and ordered no reunification services be provided to either Mirada or Tovias because

2 Tovias has no legal or biological relationship to the other four children—JM1, JM2, JF, and AM—and their rights are not at issue here. Miranda is not a party to this appeal. 3 Tovias was arrested and charged with second-degree domestic battering, aggravated assault on a family or household member, first-degree endangering the welfare of a minor, tampering with physical evidence, kidnapping, terroristic threatening, and permitting child abuse.

2 JF had been subjected to extreme or repeated cruelty.4 The court made a finding of

aggravated circumstances and found that there was little likelihood that services to the family

would result in successful reunification.

Immediately after ordering no reunification services, the court conducted a

permanency-planning hearing. The court noted that while Tovias had made some progress

toward alleviating or mitigating the causes of the children’s removal from the home and

completing the court orders and requirements of the case plan, he had not demonstrated an

ability to keep the children safe from harm, which it found to be the most important thing.

The court found that the permanent goal for JT1 was adoption with DHS filing a petition

for termination of parental rights.

DHS filed its first petition to terminate parental rights on July 10, 2018. After a

termination hearing, the circuit court found that DHS had proved aggravated circumstances

by clear and convincing evidence and that termination was in JT1’s best interest. Tovias

appealed, and we reversed and remanded, holding that DHS had failed to establish

that Tovias was JT1’s parent for the purposes of satisfying the statutory grounds necessary

for termination. Tovias I.

After remand, the court adjudicated Tovias the biological father of JT1 based on

DNA test results. At a special review hearing, the court ordered Tovias to cooperate with

DHS; to remain in weekly contact with the family service worker; to inform DHS of any

address or telephone number change; to maintain contact with his attorney; to maintain a

clean, safe home for himself and JT1; to demonstrate an ability to protect JT1 and keep him

4 Miranda admitted under oath that her actions were extreme and cruel.

3 safe from harm; and to maintain stable housing and employment. The goal of the case

remained adoption.

Approximately one month later, the court held a permanency-planning hearing. The

court noted that Tovias had taken parenting classes and had completed counseling. The

court found, however, that Tovias had not made measurable, sustainable, or genuine

progress toward alleviating or mitigating the causes of JT1’s removal from the home or

completing the court orders and requirements of the case plan Specifically, the court found

that Tovias had subjected JT1 and his siblings to aggravated circumstances by permitting

physical abuse, emotional abuse, starvation, and confinement of JT1’s sibling and had failed

to demonstrate an ability to protect JT1 and keep him safe from harm.

Regarding Tovias’s ability to protect, the court was concerned about his relationship

with Miranda. In the dependency-neglect proceedings involving JT2, Tovias had testified

that he thought Miranda is a good mother and that she had made progress. He further

testified that he and Miranda were separated and not then living together. When cross-

examination revealed otherwise, Tovias admitted that he had lied because “he didn’t want

to get her in trouble.” At the permanency-planning hearing concerning JT1, Tovias testified

that he finally believed that Miranda had abused JF. The court, however, stated that it could

not trust that if JT1 was placed with Tovias, he would not be harmed by Tovias or Miranda,

whose parental rights had already been terminated.

DHS once again petitioned the court to terminate Tovias’s parental rights. This

second petition alleged the following grounds: aggravated circumstances, involuntary

termination of parental rights to a sibling (JT2), and subsequent other factors. The court

4 conducted a termination hearing, receiving testimony from only two witnesses: Tovias and

Kari Horton, the family service worker.

Horton testified that Tovias had kept DHS informed of his address and phone

number; that he had completed his parenting classes; and that he had maintained stable

housing and employment. In fact, she testified that Tovias was in full compliance with the

case plan and court orders with only one exception: his demonstrated ability to keep JT1

safe from potential harm. Concerning his ability to keep JT1 safe, she testified that the

children had been victimized by extreme and repeated cruelty within the home and that

Tovias had failed to protect them while the abuse was occurring. She further testified that

Tovias was still married to, and still in somewhat regular contact with, Miranda despite the

horrific abuse she admittedly inflicted on the children. Even if Tovias were not in a

relationship with Miranda, Horton was concerned with his judgment and whether he would

protect the child from future abuse by someone else. Additionally, she testified that Tovias

still had charges pending against him arising from the initial abuse allegations. As far as

adoptability, Horton further testified that JT1 does not have any special needs or behavioral

issues that might inhibit adoption.

Tovias testified in his own behalf. Concerning Miranda, he admitted his previous lie

under oath about his living arrangements with her and reiterated his reasoning for doing so.

He testified that he was currently living alone in his apartment, having separated from

Miranda two months prior to the termination hearing. Concerning the abuse within the

home, he acknowledged Miranda’s admission to physically abusing, starving, and

handcuffing his stepson, JF. He testified that while he had initially believed Miranda was a

5 good mother, he had since changed his mind after she had become physically abusive with

him earlier in the year. Despite this, he admitted that they were still married and continued

to live together even after her admission of cruelty.5 He claimed he was still married to her

only because he could not afford to get a divorce but reported that he would have no

problem keeping JT1 safe from her because she would be going to prison for a long time.

Concerning his own criminal culpability, he admitted that he still had multiple criminal

charges pending regarding his stepson, JF, but reported that he had received word that his

charges were going to be dropped.

After hearing the testimony and reviewing the record, the court terminated Tovias’s

parental rights. In its termination order, the court found that DHS had proved the statutory

grounds for termination and that termination was in JT1’s best interest. Tovias appeals,

challenging only the court’s best interest finding.

II. Standard of Review and Applicable Law

Tovias had his natural rights as a parent terminated, which our supreme court has

recognized is an extreme remedy. Earls v. Ark. Dep’t of Human Servs., 2017 Ark. 171, 518

S.W.3d 81. We review termination-of-parental-rights cases de novo. Harjo v. Ark. Dep’t of

Human Servs., 2018 Ark. App. 268, 548 S.W.3d 865. We will affirm if at least one statutory

ground exists, in addition to a finding that it is in the children’s best interest to terminate

parental rights. Ark. Code Ann. § 9-27-341 (Supp. 2019); Kohlman v. Ark. Dep’t of Human

Servs., 2018 Ark. App. 164, 544 S.W.3d 595. We will not reverse the circuit court’s ruling

5 He claimed that he married her so that he would have more of a say in the placement of JT2.

6 unless its findings are clearly erroneous. Sharks v. Ark. Dep’t of Human Servs., 2016 Ark. App.

435, 502 S.W.3d 569. A finding is clearly erroneous when, although there is evidence to

support it, we are left with a definite and firm conviction that a mistake has been made. Id.

On appeal, Tovias does not challenge the circuit court’s finding of statutory grounds;

instead, he challenges only the circuit’s determination that termination was in the best

interest of his child. In determining best interest, the circuit court’s finding must be based

on the consideration of at least two factors: (1) the likelihood of adoption if parental rights

are terminated and (2) the potential harm caused by continuing contact with the

parent. Baxter v. Ark. Dep’t of Human Servs., 2017 Ark. App. 508. It is the overall evidence—

not proof of each factor—that must demonstrate termination is in the child’s best interest. Id.

Here, the circuit court found that JT1 is adoptable, and Tovias does not challenge

the court’s adoptability finding. He only argues that DHS failed to prove that JT1 faced

potential harm if returned to his custody. A potential-harm analysis must be conducted in

broad terms, with the circuit court considering the harm to the children’s health and safety

that might occur from continued contact with the parent. Barnes v. Ark. Dep’t of Human

Servs., 2017 Ark. App. 525. There is no requirement to find that actual harm would result

or to identify the potential harm. Id.

The circuit court’s findings concerning potential harm and best interest were not

clearly erroneous. Tovias’s wife, Miranda, horribly abused JT1’s half sibling while living

with Tovias. The child was handcuffed to a desk in the living room for hours at a time.

The child had bruising and was visibly malnourished; yet, Tovias did nothing. He either

acquiesced in Miranda’s behavior or was so oblivious he could not protect the child. JT1

7 was present in the home while all this was occurring and witnessed this abuse. Even after

Miranda admitted the abuse, Tovias married her. Tovias claims that he wants to divorce

Miranda; however, he continued to live with her until shortly before the termination

hearing. In fact, he lied to the court about his living arrangements and his relationship with

her to prevent her from getting in trouble. The court expressed its concern that, given his

past actions, Tovias would not protect JT1 from future harm. A parent’s

failure to protect provides an adequate basis for finding that a child would be subject

to potential harm if returned to the parent and, as such, will support a circuit court’s

assessment of potential harm. See Yelvington v. Ark. Dep’t of Human Servs., 2019 Ark. App.

337, at 6, 580 S.W.3d 874, 878; Bowman v. Ark. Dep’t of Human Servs., 2012 Ark. App.

477. Clearly, under these facts, Tovias’s failure to protect the children from Miranda is

sufficient, in and of itself, to support the circuit court’s potential-harm finding.

In light of the foregoing, we cannot conclude that the circuit court’s best-interest

finding was clearly erroneous and therefore affirm the termination of Tovias’s parental rights

to JT1.

Affirmed.

KLAPPENBACH and VAUGHT, JJ., agree.

Tabitha McNulty, Arkansas Commission for Parent Counsel, for appellant.

Callie Corbyn, Office of Chief Counsel, for appellee.

Kimberly Boling Bibb, attorney ad litem for minor child.