Porchia Calloway v. Arkansas Department of Human Services and Minor Child

2022 Ark. App. 192, 644 S.W.3d 262

• Court: Court of Appeals of Arkansas
• Decided: May 4, 2022
• Status: Published

Opinion

Cite as 2022 Ark. App. 192 ARKANSAS COURT OF APPEALS DIVISION III No. CV-21-574

PORCHIA CALLOWAY Opinion Delivered May 4, 2022 APPELLANT APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, EIGHTH V. DIVISION [NO. 60JV-20-415] ARKANSAS DEPARTMENT OF HUMAN SERVICES AND MINOR HONORABLE TJUANA C. BYRD, CHILD JUDGE APPELLEES AFFIRMED

BART F. VIRDEN, Judge

Porchia Calloway appeals the Pulaski County Circuit Court’s decision terminating

her parental rights to MC (04/21/16). We affirm.

On May 8, 2020, the Arkansas Department of Human Services (Department) filed a

petition for ex parte emergency custody and dependency-neglect alleging that on May 5, the

Little Rock Police Department (LRPD) asked for assistance with Calloway and MC. The

officer stated that Calloway seemed to be on narcotics and had threatened the dispatcher.

Calloway had called the LRPD several times reporting that someone was threatening her,

the neighbors had cut off her power, and someone had harmed her child. Department

investigator Mary Hawkins went to the home and found Calloway on the porch smoking

marijuana, for which she had a prescription. Calloway stated that she smokes PCP every day though the last time she had smoked was three days ago. She explained that MC, who had

just arrived home, had not been home while she was using drugs and generally stayed with

his grandmother during those times. Calloway tested positive for THC, methamphetamine,

amphetamines, and cocaine. She denied using cocaine and methamphetamine but stated

that she had taken ecstasy a few days earlier, and she was self medicating. MC told the

investigator that his mother called the police, and she told him that they would “fix this.”

Another family service worker familiar with Calloway’s history with the Department stated

that Calloway had not been compliant with case plans in the past, which concerned her. The

Department took emergency custody of MC due to Calloway’s previous history with the

Department and her current substance abuse that affected her ability to supervise, protect,

and care for him.1 MC was placed with a relative.

On May 18, the court entered the probable-cause order and found that Calloway

believed she did not have a drinking or drug problem, but she was willing to take parenting

classes. The court ordered four hours of Zoom visitation a week as well drug screens, drug-

and-alcohol assessment, counseling assessment, psychological evaluation, and parenting

classes. Calloway was ordered to obtain stable housing, employment, and income and stay

in contact with the Department. The Department was ordered to make the necessary

referrals within ten days, hold a staffing within thirty days, DNA test the fathers, and obtain

1 Since 2011, Calloway and previous children who are not parties to this case were involved with the Department due in part to Calloway’s abandonment, neglect, and drug use. Several findings of “client failed to cooperate” were made over the years, and at the time of MC’s removal, she did not have custody of any of her children.

2 MC’s birth certificate. The court determined that Calloway, who was represented by court-

appointed counsel at the hearing, did not qualify for court-appointed counsel and advised

her to hire an attorney.

On July 6, the court entered the order adjudicating MC dependent-neglected based

on parental unfitness, abuse, and neglect. Specifically, the court found that MC’s hair-follicle-

test results showed that Calloway had exposed him to marijuana. Parenting classes had

begun, and Calloway participated until she “turned in an assignment and . . . stated that she

was no longer participating in parenting classes.” Calloway had not been randomly drug

screened as ordered since the probable-cause hearing. The court noted caseworker Lakisha

Tatum’s testimony that the Department referred Calloway’s hair-follicle test on June 3 and

was waiting for approval. The court found that visitation had not begun, and the previously

assigned caseworker “made arrangements about visitation before she left, but [she] did not

relate any information.” MC’s intake visit at Recover Centers of Arkansas had taken place,

but his psychological evaluation had not, and the Department was ordered to schedule an

assessment for a therapeutic foster-care home. Calloway was removed from the adjudication

hearing due to her disruptive outbursts and behavior, and the court found that “[t]he

behavior Mother displayed today is what [the Department] staff runs into when they interact

with Mother.” The Department was ordered to refer the hair-follicle test for Calloway within

five days and arrange visitation.

The court entered the review order on October 28 setting forth the following

findings. The Department had made referrals for a drug-and-alcohol assessment, a

3 psychological evaluation, parenting classes, and hair-follicle drug testing. The psychological

evaluation had to be redone because it centered on Calloway’s older child, DW, and not

MC. Because of this error, the parenting classes had been geared toward older children.

Calloway did not report her felonies and legal history during the second psychological

evaluation, and the correct services were not offered because of her omission. Calloway was

on probation at the time of the hearing and had pending felony charges. The drug-and-

alcohol assessment did not mention her methamphetamine and PCP use. Calloway’s urine

drug screen was negative for all substances, though her hair-follicle test was positive for

cocaine. Calloway stated that she had not used cocaine or PCP since May, and she denied

having a drug habit. She felt that the Department was forcing her into drug treatment,

though she stated she would go if ordered to. Calloway denied having any mental-health

issues and believed that the psychological assessment was a waste of time. Calloway had

missed nine out of eighteen scheduled visitations, which she ascribed to technical issues and

work schedules. Calloway had not been informed of a true finding that her ex-boyfriend,

Asher Satterfield, sexually abused MC; however, Calloway did not believe the sexual abuse

occurred, even after the true finding was disclosed to her. The Department had “BARELY”

made reasonable efforts to prevent removal and had mistakenly geared the services toward

the older child. Calloway had worked those services and would have to work the services a

second time because of the Department’s error. Because Calloway lied about her legal issues

and drug use, MC could not safely be returned to her. The goal of the case was reunification

with a concurrent goal of permanent custody or guardianship with a fit and willing relative.

4 On May 7, 2021, after a hearing, the circuit court entered the permanency-planning

order changing the goal of the case to adoption. The Department filed a petition to terminate

Calloway’s parental rights the same day. The petition alleged that termination was

appropriate under three statutory grounds: “failure to remedy” pursuant to Arkansas Code

Annotated section 9-27-341(b)(3)(B)(i)(a); “subsequent factors” pursuant to Arkansas Code

Annotated section 9-27-341(b)(3)(B)(vii)(a); and “aggravated circumstances” pursuant to

Arkansas Code Annotated section 9-27-341(b)(3)(B)(ix)(a)(3)(A)–(B)(i) (Supp. 2021). The

Department also alleged that MC was healthy and considered adoptable and that his health

and safety were at risk if returned to his mother. Specifically, the Department contended

that she was unfit, had not demonstrated the ability to care for MC, and had not benefited

from the services provided.

On July 8, a hearing was held on the termination petition, and the relevant testimony

is summarized here. Jennifer Balch, Calloway’s therapist, testified that in the three sessions

since Calloway’s second psychological assessment in March, she focused on anger

management and not drug-related issues. Andrew Beavers, who performed both of

Calloway’s drug-and-alcohol assessments, diagnosed her with alcohol-use disorder and

cannabis-use disorder, and he opined that even though Calloway did not disclose in either

assessment that she tested positive for THC, methamphetamine, amphetamines, and

cocaine, or that her son tested positive for THC, he recommended group meetings and

individual therapy rather than rehabilitation because she had already been through

rehabilitation in 2019 and 2020. Calloway testified that she was no longer in a relationship

5 with Satterfield and did not believe her son would be safe around Satterfield because he had

“personal issues.” She explained that she did not believe that Satterfield had sexually abused

MC, even after the true finding of sexual abuse was disclosed to her. Calloway testified that

she had used methamphetamine, cocaine, and PCP over the three years before MC was

removed from her custody, and marijuana for about eighteen years. Calloway explained that

the Department failed to timely schedule the second drug-and-alcohol assessment after the

October 2020 hearing, and she did not complete the second assessment until June 30, 2021.

The assessment results were not given to her, and she was not aware of the recommendations

therein; however, she stated that she would comply with any recommendation. Calloway

testified that her plan to stay sober was to refrain from drug use and that she did not need

to go to meetings. Calloway explained that until 2021, she was “big headed” and did not

think she needed counseling, but since then, she had arranged counseling herself and

rejected the Department’s referral for counseling because she was already in therapy.

Calloway explained that she had recently begun taking her mental-health related

medication—one medication on a daily basis and the rest “as needed.” Calloway stated that

she was “too forward” and “too emotional” and had lashed out at the Department and

threatened to take MC, though she apologized later. She explained that during one visitation

she told MC he was coming home with her because “[she] felt like he would be returned

home to [her] today,” and she was “living on faith.” Calloway attributed her missed

visitations to work and losing track of time. Calloway described herself as a loving and

overprotective mother who spoiled her children, although none of her other children lived

6 with her. She testified that she made mistakes and had done things in front of the children

that she should not have; however, Calloway also stated that she did not need to be told how

to raise her children. DeUngela Fields, the caseworker, testified that the Department had

some responsibility for the delays in the case. She explained that she did not give Calloway’s

second drug-and-alcohol assessment to her, and that the assessment included

recommendations for outpatient treatment and nine telemedicine sessions. Fields stated that

she did not know why Calloway did not start counseling until recently and that she made

the referral in April, after the March assessment. Fields testified that the Department had

concerns about Calloway’s mental health due to her angry outbursts and her cursing and

yelling during phone conversations as recently as the day before the hearing. Fields stated

that Calloway was on probation for fighting. Throughout the case, Fields explained, the

Department had to “tiptoe” around Calloway “because you don’t know what will set her off”

and that “it was not safe for the Department to go to her home to do drug tests.” Fields

stated that the Department had requested a police escort for home visits at times but had

not done so to administer drug tests. Fields recalled that the Department had asked Calloway

to come to the office for drug screening in July, but Calloway never showed. Rickitha Hicks

testified that Calloway had missed around fifteen visits since the case was opened, and that

since the April hearing, the visitations had gone better. Before then, Calloway did not always

abide by the Department guidelines, and one time a visitation had to end early due to her

disruptive behavior.

7 Following the hearing, the court entered the order terminating Calloway’s parental

rights. In the termination order, the court found that the following evidence and testimony

supported the statutory grounds for termination. MC went into Department care on March

5, 2020, due to parental drug use and was found to be dependent-neglected due to parental

unfitness, abuse, and neglect. While in his mother’s care, MC was exposed to marijuana and

tested positive for THC. Throughout the case, Calloway was disruptive and had to be

removed from hearings or muted on Zoom meetings due to her behavior. Calloway was not

truthful during her psychological evaluation or drug-and-alcohol assessments and repeatedly

stated that she does not need drug treatment. Calloway did not make significant, measurable

progress in the case plan, and the court was unable to determine whether she was sober or

not in part because the Department was afraid of what Calloway would do if they went to

her home to drug test her. The court found that the Department’s failure to drug test her

on this basis was not a legitimate excuse. The court found that Calloway had threatened

Department employees assigned to her case and that she had been arrested for battery in

March 2020. Calloway had not engaged in counseling and did not feel she needed

counseling, though she acknowledged her mental-health issues and believed she needed

anger-management counseling. The court found that Calloway had only recently begunan

taking her medication; however, she only partially took her medication as prescribed.

Visitation with MC had never progressed to in-person visitation because Calloway was

“disruptive and aggressive,” and the court found that her behavior was potentially harmful

to MC, not because she threatened him, but because she is likely to expose him to another

8 removal or trauma based on her behavior. The court found that MC had stated that

Satterfield sexually abused him, and a true finding of sexual abuse was made, but Calloway

does not believe her son. Though she is no longer in a relationship with Satterfield, it is not

because he sexually abused MC. The court found that MC is adoptable and that he would

be subjected to potential harm if returned to Calloway due to her outbursts, aggression,

further drug exposure, and failure to acknowledge sexual abuse. Additionally, the court

found that Calloway does not have custody of any of her other children. Calloway timely

filed her notice of appeal.

II. Discussion

A. Standard of Review

The standard of review in appeals of termination of parental rights is de novo, but we

reverse a circuit court’s decision to terminate parental rights only when it is clearly erroneous.

Guardado v. Ark. Dep’t of Hum. Servs., 2019 Ark. App. 16, 568 S.W.3d 296. A finding is clearly

erroneous when, although there is evidence to support it, the reviewing court on the entire

evidence is left with a distinct and firm conviction that a mistake was made. Hopkins v. Ark.

Dep’t of Hum. Servs., 79 Ark. App. 1, 83 S.W.3d 418 (2002).

B. Points on Appeal

1. Statutory grounds

Calloway challenges the sufficiency of the evidence supporting the court’s findings

that the Department adequately proved the three independent statutory grounds for

termination. We have repeatedly held that the Department need only prove one ground for

9 termination, so we must affirm if the evidence supports at least one of the statutory grounds

at issue in this case. Martin v. Ark. Dep’t of Hum. Servs., 2016 Ark. App. 521, at 11, 504 S.W.3d

628, 635.

Arkansas Code Annotated section 9-27-341(b)(3)(B)(ix)(a)(3) establishes a statutory

ground for the termination of parental rights when “[a] determination has been made by a

judge that there is little likelihood that services to the family will result in successful

reunification.” Ark. Code Ann. § 9-27-341(b)(3)(B)(ix)(a)(3). Calloway contests the court’s

finding that there is little likelihood that additional family services would result in successful

reunification, because the evidence shows that she “worked throughout this case to reunify

with her son.” This argument has no merit

Specifically, Calloway argues that

she was drug free, completed parenting classes, participated in two psychological evaluations, completed two drug and alcohol assessments, was taking her medication, had a home, was employed, was participating in counseling and was willing to do whatever was recommended by the drug assessment.

Calloway’s characterization of the situation ignores her contribution to the problems

in the case. She asserts that she was drug free, but she had refused to drug test very close to

the termination hearing. Calloway contends that she completed parenting classes; however,

she did not gain the skills needed to protect and parent her child. Calloway completed two

drug-and-alcohol assessments, but she was dishonest during both. Though Calloway was

participating in counseling, it was only because she decided to do so eleven months into the

case. Calloway stated that she was “willing to do whatever was recommended,” but her

10 dishonesty about her drug use skewed the recommendations and required a second

assessment, which delayed her ability to make progress in the case plan. Calloway’s behavior

stymied her ability to work the case plan. In summary, Calloway’s argument is a request to

reweigh the evidence, which this court will not do. See Phillips v. Ark. Dep’t of Hum. Servs.,

2020 Ark. App. 169, 596 S.W.3d 91.

Additionally, Calloway contends that the Department failed to offer drug screens,

convey the results of the second drug-and-alcohol assessment, and monitor her progress in

counseling. Essentially, Calloway argues that the Department failed to offer meaningful

services. A finding of aggravated circumstances does not require the Department to prove

that meaningful services toward reunification were provided; thus, her argument has no

merit. See Draper v. Ark. Dep’t of Hum. Servs., 2012 Ark. App. 112, 389 S.W.3d 58. Because

the Department need only prove one statutory ground supporting termination of parental

rights, we affirm the circuit court’s finding that termination was supported by sufficient

evidence on the aggravated-circumstances ground.

2. Best interest

Calloway also challenges the court’s finding that termination was in MC’s best

interest, contending that the court erred in basing the potential-harm finding on her drug

use, aggressive behavior, and “failure to acknowledge the true finding for sexual assault.”

Calloway additionally argues that the court erred by relying on the fact that she did not have

custody of her four other children because the record is devoid as to why she does not have

11 custody of those children. The crux of her argument is that the court speculated that her

children were no longer with her because of her unfitness. Her arguments fail.

In addition to finding a statutory ground for termination, an order terminating

parental rights must also be based on clear and convincing evidence that the termination is

in the child’s best interest. Smith v. Ark. Dep’t of Hum. Servs., 2018 Ark. App. 380, at 6, 555

S.W.3d 896, 900. When making a best-interest determination, the circuit court must

consider the likelihood the child will be adopted and the potential harm the child would

face if returned to the parents. Id. Potential harm must be viewed in a forward-looking

manner and considered in broad terms. Id. It is the overall evidence—not proof of each

factor—that must demonstrate termination is in the children’s best interest. Hickman v. Ark.

Dep’t of Hum. Servs., 2021 Ark. App. 457, 636 S.W.3d 815.2

Specifically, the court relied on evidence and testimony that Calloway was unable to

control her anger as recently as the day before the termination hearing, and her anger issues

had resulted in her arrest. The court found that further aggressive behavior would be

traumatic for MC to witness and, if Calloway was arrested again, would leave MC without

family to care for him. Also, the court heavily weighed Calloway’s refusal to believe MC and

accept the sexual abuse finding against her ex-boyfriend. The court found that Calloway had

only recently begun counseling, and she denied that she had a drug problem or needed

treatment, despite her years of drug abuse. Even excluding Calloway’s previous involvement

2 Calloway’s best-interest argument does not challenge the court’s adoptability finding.

12 with the Department, the Department demonstrated the potential harm in returning MC to

Calloway’s custody. The circuit court’s finding that Calloway presented a risk of harm to

MC’s health and safety is supported by clear and convincing evidence. We affirm.

Affirmed.

WHITEAKER and MURPHY, JJ., agree.

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

Andrew Firth, Ark. Dep’t of Human Services, Office of Chief Counsel, for appellee.

Dana McClain, attorney ad litem for minor child.