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

547 S.W.3d 111
CourtCourt of Appeals of Arkansas
DecidedMarch 14, 2018
DocketNo. CV–17–633
StatusPublished
Cited by6 cases

This text of 547 S.W.3d 111 (Swangel v. Ark. Dep't of Human Servs.) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Swangel v. Ark. Dep't of Human Servs., 547 S.W.3d 111 (Ark. Ct. App. 2018).

Opinion

BRANDON J. HARRISON, Judge *113Donna Swangel appeals the termination of her parental rights to her children J.S., R.M., and A.R. Donna raises three points on appeal: the circuit court lacked jurisdiction to enter a termination order as to R.M.; there was insufficient evidence that a termination was in her children's best interest; and the circuit court did not follow the Indian Child Welfare Act (ICWA). We affirm.

Donna first argues that the circuit court lacked jurisdiction to terminate her parental rights to R.M. because the Arkansas Department of Human Services (DHS) did not file a petition seeking to terminate her rights to R.M., serve her with such a petition, or provide her with any notice that her rights as to R.M. were at issue. In other words, Donna contends that DHS only sought to terminate her parental rights to J.S. and A.R.

II. Best Interest

Donna's children were removed, in part, because of her suspected drug use (methamphetamine), which was later proved and continued essentially throughout the nearly two years this case was pending. She does not challenge any statutory ground for the termination but does argue that the termination was not in her children's best interest. In Donna's view, terminating her parental rights was a "draconian measure" because two of the children were placed with an aunt, and termination would not have furthered stability or permanency because continued contact with a parent would have been beneficial.

We review termination-of-parental-rights cases de novo but do not reverse unless the circuit court's findings are clearly erroneous. Miller v. Ark. Dep't of Humans Servs. , 2016 Ark. App. 239, at 7, 492 S.W.3d 113, 117. An order terminating parental rights must be based on a finding by clear and convincing evidence that one of the grounds stated in the termination statute is satisfied and that the sought-after termination is in the children's best interest. Id. In making a best-interest determination, the circuit court is required to consider two factors: (1) the likelihood that the child will be adopted and (2) the potential of harm to the child if custody is returned to a parent. Id.

The court considered Joey Musgrove's evidence that R.M. should live with him in Florida if the court terminated Donna's parental rights. (Recall that he is R.M.'s legal father.) In its termination order the circuit court credited Miranda Zeltner's testimony that Estes wished to adopt the children, and there were no foreseeable barriers preventing an adoption from occurring. The court stated that it was "gravely" concerned about Donna's ongoing drug issues, including dating men who are users. Out of thirty-seven drug tests introduced, twenty-eight were positive for methamphetamine. The court observed that Donna admitted that she had been given notice by her landlord that she was being evicted because of drug use on the premises. The court also found that Donna had obtained illegal substances but lacked electricity, could not meet her children's basic needs, and could not keep them safe because of her addiction. The court found that a substantial risk of harm existed because Donna could not maintain sobriety throughout the case.

The court's best-interest finding was not clearly erroneous. It may consider past behavior as a predictor of likely future harm if the children were returned to her. Harbin v. Ark. Dep't of Human Servs. , 2014 Ark. App. 715, at 3, 451 S.W.3d 231, 233. By statute, the circuit court is not required to find that actual harm would result. L.W. v. Ark. Dep't of Human Servs. , 2011 Ark. App. 44, 380 S.W.3d 489. The potential-harm evidence, moreover, must be viewed in a forward-looking manner and considered in broad terms. Id. Donna's use of methamphetamine is sufficient evidence of potential harm given her long history with the drug. Furnish v. Ark. Dep't of Human Servs. , 2017 Ark. App. 511, at 13, 529 S.W.3d 684, 692 (a parent's continuing use of illegal drugs poses a risk of harm to the children if returned to that parent). The court's best-interest determination is largely a credibility call, and we defer to its decision on that point.

That two of the children had been placed with a relative does not undermine the court's best-interest finding. Donna asks us to reverse the court's decision given (1) her therapist's testimony that the children were bonded to her, (2) that DHS had failed her in meaningful ways, (3) that the children's placement across the state hindered family therapy, and (4) it was in the children's best interest to maintain a relationship with their mother.

Arkansas law permits a circuit court to set termination or adoption as the case goal even when a relative is available and requests custody. Ark. Code Ann. § 9-27-338(c)(1)-(6) (Supp. 2017). Arkansas Code Annotated section 9-27-338(c)(1)-(6) lists the permanency goals that the circuit court is to consider in determining the best interest of the children. The first preference is to return the juvenile to the parents if it is in the best interest of the juvenile and the child's health and safety can be adequately safeguarded if returned home. Ark. Code Ann. § 9-27-338(c)(1). The second preference is adoption, unless the juvenile is being cared for by a relative and terminating parental rights is not in the best interest of the juvenile. Ark. Code Ann. § 9-27-338(c)(2). Permanent relative placement is the fourth preference. Ark. Code Ann. § 9-27-338(c)(4). Arkansas's public policy prefers termination and adoption over permanent relative placement. McElwee v. Ark. Dep't of Human Servs. , 2016 Ark. App. 214

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Cite This Page — Counsel Stack

Bluebook (online)
547 S.W.3d 111, Counsel Stack Legal Research, https://law.counselstack.com/opinion/swangel-v-ark-dept-of-human-servs-arkctapp-2018.