Sonya Owen v. Arkansas Department of Human Services and Minor Child

2019 Ark. App. 413

• Court: Court of Appeals of Arkansas
• Decided: September 25, 2019
• Status: Published

Opinion

Cite as 2019 Ark. App. 413 Digitally signed by Elizabeth Perry ARKANSAS COURT OF APPEALS Date: 2022.07.26 13:32:48 -05'00' DIVISION III Adobe Acrobat version: No. CV-19-449 2022.001.20169 SONYA OWEN Opinion Delivered: September 25, 2019

APPELLANT APPEAL FROM THE UNION COUNTY CIRCUIT COURT V. [NO. 70JV-18-14]

HONORABLE EDWIN KEATON, ARKANSAS DEPARTMENT OF JUDGE HUMAN SERVICES AND MINOR CHILD

APPELLEES AFFIRMED

MEREDITH B. SWITZER, Judge

Sonya Owen appeals the termination of her parental rights to her son, JN, born on

February 19, 2018. Owen’s sole point on appeal is the circuit court erred in not appointing

her a guardian ad litem. We affirm.

I. Facts

This case began on February 22, 2018, with a report of suspected neglect based on

concerns that Owen was not feeding newborn JN enough and that Owen, who is

developmentally delayed, would be unable to care for JN because she is unable to care for

herself. During an interview with the investigator, Owen stated that prior to JN’s birth, she

was living with her boyfriend, Mat Newlin, who is not JN’s father and that JN’s father was

in prison in Colorado. She believed her hygiene was perfect with the exception of her

teeth, which she admittedly did not brush every day. She also reported she and Newlin washed their clothes once a month; she had not been taking her medication for bipolar

disorder and attention-deficit disorder (ADD) while she was pregnant; Newlin smoked

cigarettes; and she knew how to care for a baby despite her bipolar disorder and ADD.

One of the nurses who cared for Owen after JN’s birth expressed concern that Owen

was not feeding him enough. When the nurse told Owen that DHS wanted to watch her

feed JN, Owen began feeding him and began to bond with him. Owen’s case manager

stated Owen told her she had used methamphetamine twice during her pregnancy. The

case manager also reported Owen has three other children, two of whom lived with their

father and one whom she had given up voluntarily; and the nurses were concerned about

Owen’s hygiene and her ability to care for JN.

JN was released from the hospital on February 23, and DHS placed a 72-hour hold

on him based on concern of an immediate danger to JN’s health or physical well-being due

to Owen’s mental capacity and inability to care for him and protect him from harm. An ex

parte order for emergency custody was entered on February 28. On March 27, a probable-

cause order was entered continuing JN in DHS custody because Owen was unfit to have

custody, and JN’s health and safety could not be protected if returned to Owen.

DHS filed its first petition to terminate Owen’s parental rights on April 2, alleging

that Owen had subjected JN to aggravated circumstances. This petition was denied in an

order filed on July 12, with the circuit court finding DHS had not proved by clear and

convincing evidence Owen had subjected JN to aggravated circumstances or that it was in

JN’s best interest for her parental rights to be terminated. However, custody of JN was

continued with DHS because the return of custody to Owen was contrary to JN’s welfare.

2 JN was adjudicated dependent-neglected in an order filed on May 7. Owen was

ordered to follow the case plan, obey all court orders, and cooperate with DHS; obtain and

maintain stable, clean, and suitable housing and keep all utilities on; obtain and maintain

stable employment and otherwise provide adequate income to support JN; complete

parenting classes; submit to random drug screens and test negative on all; not use or possess

any illegal drug; and attend and participate in counseling.

A review hearing was held on September 17, and an order was filed on October 9

continuing custody of JN with DHS. The order found DHS had made reasonable efforts

to provide services to achieve a goal of reunification but found Owen had not complied

with the case plan and court orders, and Newlin, with whom Owen was still living, had not

cooperated with DHS. Owen was ordered to do all the things previously ordered in the

adjudication order. A second review hearing was held on December 17, 2018; 1 the circuit

court again found DHS had made reasonable efforts to provide services to achieve

reunification, but Owen was still not compliant with the case plan or court orders.

DHS filed a second petition to terminate Owen’s parental rights on January 9, 2019,

alleging two grounds: (1) other factors or issues arose subsequent to the filing of the original

petition for dependency-neglect that demonstrated placement of JN in Owen’s custody was

contrary to his health, safety, or welfare and that, despite the offer of appropriate family

services, Owen had manifested the incapacity or indifference to remedy the subsequent

issues or factors or to rehabilitate the circumstances preventing placement of JN in Owen’s

custody (Ark. Code Ann. § 9-27-341(b)(3)(B)(vii)(a) (Supp. 2017)); and (2) JN was

1 This order was not filed until January 22, 2019.

3 subjected to aggravated circumstances (Ark. Code Ann. § 9-27-341(b)(3)(B)(ix)(a)(3)).

After a February 8, 2019 hearing, the circuit court terminated Owen’s parental rights to JN

in an order filed March 12, finding Owen had subjected JN to aggravated circumstances

and it was in his best interest for Owen’s parental rights to be terminated. Specifically, the

circuit court found the following: the case had never progressed to a point where DHS felt

comfortable with allowing Owen to care for JN due to her level of functioning; while

Owen had completed parenting classes, it did not change or affect her ability to care even

for herself; Owen was unable to maintain a proper home or manage her money in a

responsible manner; and she made poor decisions. The circuit court stated it was not sure

what additional services could be offered to impact Owen’s intellectual functioning.

At the termination hearing, JN’s caseworker testified JN had never been returned to

Owen’s care during the pendency of this case; Owen had tested positive for

methamphetamine and amphetamines once in June 2018; she was unable to provide

adequate information on her drug and alcohol usage for a drug assessment; and she had

difficulty managing her money, paying for things such as video games, and then not having

money to buy medication and her glasses. Owen’s current living situation was a one-

bedroom, one-bath home, with Owen and Newlin using the living room as both their

bedroom and a kitchen. It was the caseworker’s opinion that Owen could not provide a

suitable home for JN; she had not proved she could provide the necessary supervision to

protect JN from harm; she was unable to meet JN’s needs for food, clothing, shelter, medical

or mental-health; and her emotional stability, especially due to her low level of intellectual

functioning, seriously impeded her ability to care for JN. The caseworker testified that the

4 examiner who performed Owen’s psychological exam concluded Owen is unable to care

for JN.

On cross-examination, the caseworker agreed that JN had never lived with Owen

and that Owen is disabled under the Americans with Disabilities Act (ADA). When asked

what reasonable accommodations had been made for Owen under the ADA, the caseworker

explained Owen was given one-on-one parenting classes and supervised visitation which,

in her opinion, were the only services that could be offered to Owen.

Owen’s program administrator (PA) testified she had been Owen’s PA for over a

year and had provided assistance to Owen to make sure she knew the importance of keeping

a safe home, good body hygiene, proper care for an infant, and budgeting so that she was

able to purchase necessary items such as medication, glasses, and food. The PA also provided

one-on-one parenting classes for Owen because it took Owen longer to understand the

material, but Owen lacked the ability to demonstrate during visits that she could care for

JN. The PA noted that at one point, Owen had allowed a man who had been living in a

tent to move in with her and Newlin and that Owen had recently begun smoking.

The adoption specialist testified JN is adoptable. She stated JN’s current placement

would like to adopt him if the opportunity arose.

In closing, Owen’s counsel argued that while DHS had made accommodations for

Owen in her parenting classes, DHS had done nothing else to accommodate Owen’s

disabilities because, other than making a DDS referral, DHS did not offer Owen any other

services. Owen’s counsel asked rhetorically what other services could be offered so that

Owen could have meaningful access to reunification with JN; the attorney ad litem asserted

5 Owen’s counsel was unable to name additional services DHS should have provided because

all services had been provided to Owen.

In finding aggravated circumstances as the ground for termination, the circuit court

noted Owen struggled to care for herself, much less JN; she made poor choices; and most

of all, Owen’s level of functioning interfered with her ability to provide for JN’s needs. The

circuit court stated it was not sure what other services DHS could have offered to affect

Owen’s intellectual functioning, and it did not see Owen’s abilities rising to a level that

would allow her to care for JN.

II. Standard of Review

We review termination-of-parental-rights cases de novo, but we will not reverse the

circuit court’s ruling unless its findings are clearly erroneous. Gonzalez v. Ark. Dep’t of

Human Servs., 2018 Ark. App. 425, 555 S.W.3d 915. 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.

III. Argument

Owen makes no argument on appeal regarding the ground relied on by the circuit

court for termination, nor does she argue that termination was not in JN’s best interest.

Therefore, it is unnecessary to address the sufficiency of the evidence to support the

termination, as Owen has abandoned any sufficiency argument on appeal.

Owen’s sole point on appeal is that the circuit court erred in not appointing a

guardian ad litem for her, even though it was fully aware of her mental deficiencies and

developmental delays. This argument was not made to the circuit court. Normally, even

6 in termination cases, arguments raised for the first time on appeal will not be addressed. Sills

v. Ark. Dep’t of Human Servs., 2018 Ark. App. 9, 538 S.W.3d 249. While Owen admits she

failed to raise this issue below, she claims this issue qualifies as a Wicks exception to the rule

that a contemporaneous objection is required to preserve an issue for appeal. Wicks v. State,

270 Ark. 781, 606 S.W.2d 366 (1980). Specifically, Owen contends that the third Wicks

exception is applicable, which has been interpreted to mean that “no objection is required

to preserve an issue for appeal where the error is so flagrant and egregious that the trial court

should, on its own motion, have taken steps to remedy it.” Edwards v. Ark. Dep’t of Human

Servs., 2016 Ark. App. 37, at 12, 480 S.W.3d 215, 222 (quoting Wicks, 270 Ark. at 786,

606 S.W.2d at 369). Wicks exceptions are extremely rare. Welvaert v. Ark. Dep’t of Human

Servs., 2017 Ark. App. 513, 530 S.W.3d 382.

In support of her contention, Owen cites Baker v. Arkansas Department of Human

Services, 2011 Ark. App. 400. Baker is distinguishable, as discussed in Pratt v. Arkansas

Department of Human Services, 2012 Ark. App. 399, 413 S.W.3d 261, in which this court

clarified the discussion of Wicks in the Baker case by holding, “[T]he Wicks discussion in

Baker arose from an earlier no-merit setting and stands only for the proposition that it may

not be frivolous to argue that the Wicks exception to the contemporaneous-objection rule

might apply in a termination case where an issue was not preserved.” 2012 Ark. App. at

13, 413 S.W.3d at 267.

We disagree that these facts qualify as a Wicks exception. Owen was represented by

counsel, who questioned DHS employees and argued vociferously regarding the services

and accommodations, or lack thereof, provided to Owen as a result of her disabilities to

7 allow her to seek reunification with JN. Our supreme court has never applied a Wicks

exception in a DHS termination case when the parent is represented by counsel. Weathers

v. Ark. Dep’t of Human Servs., 2014 Ark. App. 142, 433 S.W.3d 271.

We note that Owen’s argument would fail even if it had been preserved. While an

element of the subsequent-factors ground requires DHS to comply with the ADA, see Ark.

Code Ann. § 9-27-341(b)(3)(B)(vii)(b), there is no such corresponding requirement in the

aggravated-circumstances ground, see Ark. Code Ann. § 9-27-341(b)(3)(B)(ix)(a)(3).

Affirmed.

VIRDEN and VAUGHT, JJ., agree.

Leah Lanford, Arkansas Commission for Parent Counsel, for appellant.

Ellen K. Howard, Office of Chief Counsel, for appellee.

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