Opinion
CV-22-167
09-28-2022
SHAVONNA FORD APPELLANT v. ARKANSAS DEPARTMENT OF HUMAN SERVICES AND MINOR CHILDREN APPELLEES
Jennifer Oyler Olson, Arkansas Commission for Parent Counsel, for appellant. Ellen K. Howard, Ark. Dep't of Human Services, Office of Chief Counsel, for appellee. Dana McClain, attorney ad litem for minor children.
APPEAL FROM THE VAN BUREN COUNTY CIRCUIT COURT [NO. 71JV-19-29] HONORABLE SUSAN WEAVER, JUDGE
Jennifer Oyler Olson, Arkansas Commission for Parent Counsel, for appellant.
Ellen K. Howard, Ark. Dep't of Human Services, Office of Chief Counsel, for appellee.
Dana McClain, attorney ad litem for minor children.
RITA W. GRUBER, JUDGE
Appellant Shavonna Ford appeals from an order of the Van Buren County Circuit Court terminating her parental rights to BR (08/22/13) and CR (06/26/19). On appeal, Shavonna argues that the Arkansas Department of Human Services (DHS) failed to prove that termination was in the children's best interest when the father's rights remained intact. We affirm.
On September 19, 2019, DHS filed a petition for dependency-neglect alleging that the children were at substantial risk of serious harm as a result of abuse, neglect, and parental unfitness. Matthew Ring was alleged to be the legal parent of BR and was identified as CR's putative father. The supporting affidavit outlined a history with the family, which included a true finding on Shavonna for failure to protect as a result of her having a head-on collision in 2018 that killed the driver of the other vehicle and seriously injured BR. The affidavit also stated that DHS opened a protective-services case after a report to the child-abuse hotline that CR had tested positive for opiates and benzodiazepines at birth. Despite multiple attempted home visits, the family did not cooperate.
An adjudication order was entered on November 6 finding that the children were dependent-neglected due to substance misuse and failure to comply with the home visits. The order noted that custody had not been removed from the parents at the time of the petition; the parents did not attend the hearing; the parents had allowed only one of thirteen attempted home visits; Shavonna had threatened a caseworker and indicated that she would not cooperate with DHS; the last drug screen had been July 27; DHS believed that Shavonna continued to use illegal drugs; DHS had not been able to see the children to determine their safety; and DHS attempted to provide services since June 2019, but neither parent would sign referrals. The children were placed in DHS custody.
Following a November 20 review hearing pertaining to visitation and appointment of counsel, the court ordered that the children remain in DHS custody with the parents having four hours of weekly supervised visitation. Matthew was found to be the legal and biological father of CR. A review hearing took place on December 4. The court authorized DHS to begin a trial home placement with Shavonna and continued the goal of reunification with adoption as the concurrent goal. The court found that Shavonna had substantially complied with the case plan and court orders. Specifically, the court found that after the children had been removed, Shavonna contacted DHS; allowed home visits; submitted to a drug screen, which was negative; attended visitation and improved her attitude after the initial visit; and had an appropriate home. The review order noted that Shavonna had pending manslaughter charges. She was ordered to comply with the case plan and court orders; cooperate with DHS and all service providers; notify DHS of any change in address or telephone numbers; allow DHS access to her home and children; remain drug-free and submit to random drug screens; attend counseling; ensure that the health and safety needs of the children were met during the trial home placement; stay in contact with the caseworker; and submit to a drug-and-alcohol assessment and a psychological evaluation.
A review hearing occurred April 22, 2020. The court returned the children to the parents' custody, finding that the parents had complied with the case plan and court orders; had demonstrated progress toward the goal of the case; and had worked all the services listed on their case plan. The case remained open, and the goal of reunification with a concurrent goal of adoption remained.
After a July 22 review hearing, the court ordered that the children remain in the parents' custody and continued the goal of reunification. DHS was ordered to gather information regarding Shavonna's seventeen-day stay in drug treatment and obtain verification regarding the rehabilitation and treatment recommendations. The court ordered both parents to submit to a hair-follicle test and to get a second opinion about CR's weight issues. Shavonna was ordered to participate in weekly counseling. An interim review hearing took place on August 5, and the court determined that the children needed services.
On September 14, the attorney ad litem filed an emergency motion for change of custody. It alleged that Shavonna's April 29 hair-follicle test, which was ordered to ensure that CR was being properly monitored for failure-to-thrive issues noted in the PACE evaluation and pediatric notes, was positive for oxycodone. The motion stated that Shavonna had admitted at the July 22 review hearing that she attended a seventeen-day drug-treatment program of her own volition and "to make the kids' attorney happy but not because she had a problem." Shavonna was prescribed suboxone. Matthew was not aware that she was going to rehab. The motion addressed the issues regarding CR's failure to thrive; noted that Shavonna seemed erratic and argumentative at a July 31 staffing meeting; and indicated that a hotline call was made regarding CR's failure to thrive. The July 23 hair-follicle test revealed that Shavonna was positive for oxycodone. It was also discovered that Matthew brought Shavonna to the drug-treatment program, which conflicted with his prior statement. Shavonna took CR on August 25 for a second opinion regarding the weight issues. She was told to bring CR in for weekly checks, and a referral was made for therapy services, which Shavonna declined, telling the family-service worker (FSW) that CR did not need them. The FSW became aware that Shavonna was involved in another car accident on June 4 with both children in the car. It was reported that she lost control and ended up in a ditch, and the toxicological reports indicated that Shavonna was under the influence of alcohol and benzodiazepines.
An emergency order of custody was entered on September 29. After an October 5 probable-cause hearing, the court found that services provided to the family did not prevent removal because Shavonna was arrested for driving under the influence and child endangerment and that Matthew knew about the incident and failed to disclose it. The children remained in DHS custody. Matthew was authorized eight-hour weekend visitations.
An adjudication hearing took place on October 17 at which the parents stipulated to another finding of dependency-neglect due to parental unfitness based on inadequate supervision and drug use. The children remained in DHS custody, and reunification remained the goal.
On October 28, the attorney ad litem filed an emergency motion to halt unsupervised visitation, which was denied. The court noted that both Shavonna and Matthew maintained that Shavonna was not present at the October 24 weekend visitation and understood that her visits were required to be supervised at the DHS office. According to the order, BR testified that he had seen Shavonna at a gas station where she worked but was unclear whether she was at the home for the weekend visit.
Following a January 6, 2021 review hearing, the court ordered that the children remain in DHS custody and continued the goal of reunification with a concurrent goal of adoption. The court found that Shavonna had partially complied with the case plan. The court noted that Shavonna's drug screens were positive only for her prescription medication, although she did test positive for K2 and admitted taking a CBD gummy; she attended visitations but fell asleep at one visit and also required assistance to control BR's behavior; and Shavonna was employed and completed the psychological evaluation. The court also noted that Shavonna seemed to be taking her medication as prescribed and submitted to pill counts, but DHS continued to have concerns about her use of prescription medication. The order stated that Shavonna had moved out of the family home to give Matthew a better chance of having the children placed with him, but the couple desired to remain in a relationship. Shavonna was authorized to have eight hours of supervised visitation with DHS and the ad litem having discretion to allow Matthew to supervise Shavonna's visitation if it was safe and in the children's best interest.
The next review hearing took place over two days in April and May. In the review order, the court continued the previous goals. The court summarized the testimony of Shavonna's doctor, Dr. Roger Mason; Dr. George DeRoeck, who administered the psychological exams to both parents; Brook Lasley, the FSW; and the parents. The court found that Shavonna had "zero compliance" with the case plan and court orders, noting that during the hearing, she was lethargic, falling asleep, slurring her speech, arguing, and interrupting the parties. The court found that Shavonna would not take responsibility for the reasons the children were in DHS custody, and her testimony was not credible.
A review hearing took place on August 9, and again the court continued the previous goals. The court found that Shavonna had not complied with the case plan and court orders and was not credible. Shavonna stopped going to the doctor and taking her prescriptions because she thought she could do without the medicine. She tested positive for methamphetamine, amphetamine, buprenorphine, benzodiazepines, opiates, and oxycodone. She attended only seven of twenty-five visits and was not able to handle the children. The order noted that Shavonna told BR not to tell if she is there on the weekend.
The order noted that the FSW was concerned that Matthew had failed to protect the children from Shavonna, which resulted in CR's failure to thrive and BR's developmental delays. The FSW recommended that the goal of the case be changed to termination and adoption.
The permanency-planning hearing took place on October 6. As to Shavonna, the court set the goal of termination and adoption, but the goal of reunification continued for Matthew. On November 5, DHS filed a petition for termination of Shavonna's parental rights. The petition was based on several grounds, including failure to remedy, subsequent factors, and aggravated circumstances. See Ark. Code Ann. § 9-27-341(b)(3)(B)(i)(a) (Supp. 2021); Ark. Code Ann. § 9-27-341(b)(3)(B)(vii)(a) ; Ark. Code Ann. § 9-27-341(b)(3)(B) (ix)(a)(3)(a) .
Shavonna did not attend the December 15 termination hearing but was represented by counsel. Lorie Hutto, DHS county supervisor assigned to this case, was the only witness to testify. Her testimony outlined the history of the case, which she indicated had been open for twenty-five months, as well as the services offered to Shavonna and her participation in the case. She opined that Shavonna had "no compliance" with the case plan and court orders. Hutto testified that although DHS was not seeking to terminate Matthew's parental rights, the children are "highly adoptable" should adoption be necessary in the future. When asked why DHS went forward with termination of Shavonna's rights when permanency with Matthew was still an option, Hutto testified that Shavonna had not shown any reunification efforts. Hutto stated that there were health and safety concerns if the children were returned to Shavonna, including that the children could end up in another vehicle accident, potentially fatal. Hutto testified that Shavonna never really admitted to having a drug problem and exhibited instability and lack of consistency, all of which were very detrimental to the children. Hutto said Shavonna was ordered not to be around the children during Matthew's visitation, yet she showed up. Hutto testified that Shavonna had not really made any progress in the case and that it had gotten worse over time.
Hutto stated that Shavonna's last visit with the children was September 3 and that she had last reached out to Shavonna after the permanency-planning hearing to encourage her to attend inpatient treatment. Hutto said Shavonna was very angry as a result of the recommendations of the court following the hearing and gave her a "very colorful response." Hutto had not spoken to her since that time.
On cross-examination, Hutto acknowledged that after a successful trial-home placement from December 2019 to April 2020, the parents had custody of the children from April to September 2020. Hutto said that during that time period, there had been some compliance. Hutto stated that at the time of the termination hearing, Shavonna was not compliant with anything; but looking at the entirety of the case, Shavonna's compliance was "less than minimal." Hutto also said that after Shavonna's drug relapse for methamphetamine in July 2021, DHS made another referral for drug assessment, but she did not attend. Hutto said that from October 2020 to May 2021, visitations were always a struggle, and DHS suspected she was under the influence because Shavonna would be very sleepy. However, Hutto said that in the beginning of the case Shavonna was consistently attending visits, although they did not always go well. As time progressed, Shavonna started missing visits.
Following the hearing, the circuit court terminated Shavonna's parental rights, finding that clear and convincing evidence supported termination on all three grounds and that termination was in the best interest of the children considering both adoptability and potential harm. Shavonna timely appealed from the January 7, 2022 termination order.
We review termination-of-parental-rights cases de novo. Roland v. Ark. Dep't of Hum. Servs., 2018 Ark.App. 333, 552 S.W.3d 443. At least one statutory ground must exist, in addition to a finding that it is in the child's best interest to terminate parental rights; these must be proved by clear and convincing evidence. Ark. Code Ann. § 9-27-341(b)(3)(A), (B) (Supp. 2021). 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. Ware v. Ark. Dep't of Hum. Servs., 2016 Ark.App. 480, at 6-7, 503 S.W.3d 874, 878. The potential harm to the child is a factor to be considered, but a specific potential harm does not have to be identified or proved by clear and convincing evidence. Pine v. Ark. Dep't of Hum. Servs., 2010 Ark.App. 781, at 11, 379 S.W.3d 703, 709. The potential-harm analysis is to be conducted in broad terms. Id. It is the "best interest" finding that must be supported by clear and convincing evidence. Singleton v. Ark. Dep't of Hum. Servs., 2015 Ark.App. 455, at 5, 468 S.W.3d 809, 812. The inquiry on appeal is whether the circuit court's finding that the disputed fact was proved by clear and convincing evidence is clearly erroneous. J.T. v. Ark. Dep't of Hum. Servs., 329 Ark. 243, 947 S.W.2d 761 (1997). 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. Henson v. Ark. Dep't of Hum. Servs., 2014 Ark.App. 225, at 6-7, 434 S.W.3d 371, 375. Credibility determinations are left to the fact-finder. Id. at 7, 434 S.W.3d at 375.
Shavonna does not challenge either the statutory grounds supporting the circuit court's termination order or the court's adoptability finding. Accordingly, this court must affirm these findings. Dye v. Ark. Dep't of Hum. Servs., 2020 Ark.App. 10, at 9, 592 S.W.3d 254, 259. Instead, Shavonna contends that the evidence was insufficient to prove that termination was in the children's best interest when the court had continued the goal of reunification as to Matthew.
Shavonna first argues that termination was premature because a less restrictive alternative-reunification with Matthew-was still being pursued. As noted by Shavonna, in considering the disposition alternatives, the circuit court shall give preference to the least restrictive disposition consistent with the best interest of the child. Ark. Code Ann. § 9-27-329(d) (Repl. 2020). However, a court may terminate the rights of one parent and not the other parent if the court finds that it is in the best interest of the child. Ark. Code Ann. § 9-27-341(c)(2)(B). Although she recognizes that single-parent termination is authorized by statute, Shavonna points to Lively v. Arkansas Department of Human Services, 2015 Ark.App. 131, 456 S.W.3d 383, in support of her argument that the circuit court's best-interest determination is clearly erroneous. In Lively, this court reversed a single-parent termination, concluding that the circuit court's best-interest determination was erroneous for two reasons: (1) there was no evidence of adoptability, and (2) the children had a stable permanent home with their mother and there was no expectation that they would be put up for adoption. In addition, we noted that terminating the father's parental rights jeopardized the children's relationship with their paternal grandparents as well as the financial support that the father might provide to the children. Id. Lively is distinguishable because in that case, the children were in the permanent custody of their mother. Here, the children are in the custody of DHS and placed in a foster home, and it remains uncertain whether reunification with Matthew will be achieved. There is no issue of a grandparent relationship.
In Lively, we also distinguished cases in which we affirmed the termination of parental rights based upon findings of the risk of harm to the children should they ever be returned to their fathers' custody, even absent a need for permanency. See Hayes v. Ark. Dep't of Hum. Servs., 2011 Ark.App. 21, at 2 (any actual harm the parent may have inflicted on any of the children must be taken into consideration in deciding whether the children need an "irrevocable break" from their parent's dangerous behavior). Ross v. Ark. Dep't of Hum. Servs., 2010 Ark.App. 660, at 8, 378 S.W.3d 253, 257 (affirming father's termination where goal of case remained reunification with mother). Although the actual harm necessitating the "irrevocable break" in Hayes and Ross involved violence, both cases also involved substance abuse as in the present case. This case is more closely aligned with Foster v. Arkansas Department of Human Services, 2018 Ark.App. 418, 559 S.W.3d 762.
In Foster, three children were removed from Foster's custody when it was discovered that two of the children were in a hotel room with her and other adults who appeared to be under the influence of drugs. Foster tested positive for methamphetamine and amphetamine. DHS assumed custody of the two children present in the hotel room, but the third child (JA) was not present because he had been living out of state with his father for over a decade. DHS had previously been involved with the mother due to her drug abuse and instability, and as a result, the two children at the hotel room had previously been in foster care. Foster's parental rights to all three children were terminated. The circuit court found that Foster's s behaviors after the two children were returned to her in the earlier case could have been life threatening, and despite all the services, the mother reverted to her dangerous lifestyle when DHS was out of her life; her efforts to rehabilitate herself after the second removal fell short; and the children suffered emotionally and psychologically as a result of being returned to her after the first case. The court did not believe it was in JA's best interest to have contact with the mother. Foster appealed only the termination of her parental rights to JA, challenging only the circuit court's best-interest determination, which we affirmed. We explained:
The fact that J.A. is not up for adoption, standing alone, does not preclude this court from affirming the potential harm the parent poses. Adoptability is only one factor to be considered. Lechner v. Ark. Dep't of Human Servs., 2009 Ark.App. 494. Furthermore, any actual harm the parent may have inflicted on any of the children must be taken into consideration in deciding whether the children need an "irrevocable break" from their parent's dangerous behavior. Hayes v. Ark. Dep't of Human Servs., 2011 Ark.App. 21, at 2.Foster, 2018 Ark.App. 418, at 6, 559 S.W.3d at 766. We stated that there was no evidence that continued contact with Foster would serve JA's best interest in any way, noting that Foster's behavior did not abate during the case, nor did she show any significant progress in complying with the case plan. In addition, we noted that the potential harm from JA's exposure to his mother's lifestyle was not speculative.
Here, the circuit court identified how the return of the children to Shavonna would place them at risk for potential harm. The potential harm included Shavonna's failure to participate in services to address substance-abuse issues, which played a factor in both accidents with the children in the car; CR's failure to thrive; BR's developmental delays; her ongoing housing and employment instability; and her mental-health issues.
Shavonna argues that under appropriate restrictions, it cannot be said that having contact with her children posed a danger to her children. She notes that while there were allegations that she had seen the children while they were on unsupervised visits with Matthew, the court never found that this had actually occurred or stopped Matthew's unsupervised visits. It should be noted, however, that in its findings to support the grounds for termination, which have not been challenged on appeal, the circuit court found:
[Shavonna] seems to want to rely on Matthew Ring gaining custody of the children. In the past case as well as times in this case, he would have custody or visitation and then she would show up and take the children which lead [sic] to the accidents or violating protection plans that the Department had in place. Termination of her rights is necessary to protect the juveniles from any further potential harm as she has proven she will not abide by court orders.
Shavonna's substance abuse was an ongoing problem throughout the entire case. There were findings that her substance abuse was a factor in the car accidents that occurred while the children were in the car and contributed to CR's failure to thrive and BR's developmental delays. This court has held that past behavior is correctly viewed as a predictor of potential harm. Cox v. Ark. Dep't of Hum. Servs., 2015 Ark.App. 202, at 10, 462 S.W.3d 670, 676. In addition, the circuit court found that Shavonna failed to comply with the case plan and court orders. Blasingame v. Ark. Dep't of Hum. Servs., 2019 Ark.App. 342, at 17, 582 S.W.3d 873, 883 (failure to comply with court orders can show potential harm).
The evidence before us supports the circuit court's finding that continued contact with Shavonna would place the children at risk of potential harm. This is particularly true given that, since a child's best interest is at issue, the circuit court's findings are given special deference. Trout v. Ark. Dep't of Hum. Servs., 359 Ark. 283, 197 S.W.3d 486 (2004). Under the circumstances of this case, we cannot say that the circuit court clearly erred in finding that termination was in the children's best interest.
Shavonna additionally argues that termination is not in the children's best interest because it would eliminate the possibility for her to pay child support in the future. Because she fails to cite any legal authority for this argument, we do not address it. Assignments of error unsupported by convincing argument or authority will not be considered on appeal unless it is apparent without further research that the point is well taken. Mercado v. Ark. Dep't of Hum. Servs., 2017 Ark.App. 232, at 3, 519 S.W.3d 715, 716. The testimony showed, however, that throughout the life of the case Shavonna would tell DHS she was employed but never submit her pay stubs.
In conclusion, there is significant evidence to support the circuit court's finding that Shavonna's children would be subjected to potential harm if returned to her custody. The circuit court's finding that it was in the children's best interest to terminate Shavonna's parental rights was not clearly erroneous; accordingly, we affirm.
Affirmed.
Gladwin and Barrett, JJ., agree.