Jung v. Arkansas Department of Human Services

Cite as 2014 Ark. App. 523

ARKANSAS COURT OF APPEALS
DIVISION I
No. CV-14-174

BRANDY JUNG Opinion Delivered October 1, 2014
APPELLANT
APPEAL FROM THE CARROLL
V. COUNTY CIRCUIT COURT,
EASTERN DISTRICT
[NO. JV-12-33]
ARKANSAS DEPARTMENT OF
HUMAN SERVICES and N.E., MINOR HONORABLE GERALD K. CROW,
CHILD JUDGE
APPELLEES
AFFIRMED

PHILLIP T. WHITEAKER, Judge

Appellant Brandy Jung appeals from a Carroll County Circuit Court order terminating

her parental rights to her child, N.E.1 She challenges the court’s finding that termination was

in the best interest of the child as well as its finding that there were statutory grounds present

on which to base a termination. Because these findings were supported by clear and

convincing evidence, we affirm.

I. Standard of Review

Termination of parental rights is an extreme remedy and in derogation of the natural

rights of the parents. Jones-Lee v. Ark. Dep’t of Human Servs., 2009 Ark. App. 160, 316

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The court also terminated the parental rights of the father, Rodney Evans. He
appealed the termination order and the two appeals were consolidated. See CV-14-200. He
subsequently moved to dismiss his appeal, and his motion was granted on July 10, 2014. As
a result, he is no longer a party to this appeal.
Cite as 2014 Ark. App. 523

S.W.3d 261. However, courts are not to enforce parental rights to the detriment or

destruction of the health and well-being of a child. Id. An order terminating parental rights

must be based on the court’s finding by clear and convincing evidence that termination is in

the best interest of the juvenile, taking into consideration (1) the likelihood that the juvenile

will be adopted if the termination petition is granted and (2) the potential harm, specifically

addressing the effect on the health and safety of the child, caused by returning the child to the

custody of the parent. Ark. Code Ann. § 9-27-341(b)(3)(A)(i) & (ii) (Supp. 2013).

Additionally, the trial court must also find by clear and convincing evidence that one or more

statutory grounds for termination exists. Ark. Code Ann. § 9-27-341(b)(3)(B) (Supp. 2013).

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

circuit court’s clear-and-convincing evidence findings are clearly erroneous. Pratt v. Ark.

Dep’t of Human Servs., 2012 Ark. App. 399, 413 S.W.3d 261

II. Procedural History

A de novo review of the record reveals that N.E. was born in January 2012. Four

months later, in May 2012, he was taken into the custody of the Arkansas Department of

Human Services (DHS). The police notified DHS that Jung had been arrested for

commercial burglary, theft of property, and second-degree child endangerment after she was

found at an abandoned hotel where alleged copper theft was occurring. The police needed

DHS intervention because N.E. was in Jung’s care at the time of her arrest. Evans, the father,

was also present; however, there was an active order of protection against him related to a

domestic-violence incident involving Jung. When the caseworker took N.E. into custody,

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the child’s clothing was dirty and the diaper bag reeked of cigarette smoke and contained no

formula.

After the child was taken into custody, DHS discovered other factors that placed the

child’s health and safety at risk. First, it was determined that, although N.E. was receiving

WIC assistance, Jung had not been picking up the vouchers. Second, it was discovered that

the child had attended only one well-baby check up at two weeks of age and had not received

any of her shots. Finally, DHS ascertained that an investigation had previously been opened

in March 2012 with regard to Jung’s smoking in the car with N.E. and using

methamphetamines while caring for the child. DHS had been unable to complete the

investigation because the family could not be located.

Based on these facts, DHS filed a petition for emergency custody, which was granted

by the court. In June 2012, the court adjudicated dependency-neglect, set the goal of

reunification, ordered reunification services, and ordered that Jung comply with the court’s

directives. Specifically, Jung was ordered to (1) obtain and complete a drug and alcohol

assessment and comply with all recommendations resulting therefrom; (2) refrain from the use

and/or possession of any and all illegal substances and/or drug paraphernalia; (3) maintain safe,

stable and appropriate housing; and (4) maintain stable employment.

Subsequently, the court held review hearings to monitor the case. The court’s orders

from these hearings reflect that Jung was not compliant with the court’s orders pertaining to

maintaining stable housing and employment and that Jung had failed drug screens. By the

time the case reached a permanency-planning hearing in March 2013, Jung had not remained

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drug-free as evidenced by positive drug screening, had not maintained stable housing or

employment, had not paid child support, and had criminal charges pending.

On May 31, 2013, DHS filed a petition to terminate parental rights. The petition

alleged that terminating Jung’s parental rights was in the child’s best interest and that four

statutory grounds for termination existed under Arkansas Code Annotated section 9-27-

341(b)(3)(B)(i)(a), (ii)(a), (vii)(a) & (ix)(a)(3)(A)–(B)(i) (Supp. 2013). After a hearing on the

merits, the trial court entered an order terminating Jung’s parental rights. In doing so, it

found that termination was in the best interest of the child and that DHS had proved all four

statutory grounds.

III. Points on Appeal

Jung initially challenges the trial court’s finding that termination was in the child’s best

interest. She concedes that N.E. is adoptable, but contends there was insufficient evidence

of potential harm in returning the child to her. In support of her argument, she notes that she

never abused N.E. and there was no evidence that she posed a threat of harm to the child,

either physically or emotionally. She further stresses the evidence of the services she

completed prior to the termination hearing. While she admits that she tested positive for

drugs in the beginning of the case, she contends she had been testing clean and had

successfully completed rehabilitation by the end of the case. She states that the trial court and

the caseworker erroneously relied on conjecture and innuendo to find that she had provided

adulterated samples for her drug screens and that no evidence of such adulteration existed.

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In considering the potential harm caused by returning the child to a parent, the court

is not required to find that actual harm would result or to affirmatively identify a potential

harm. Welch v. Ark. Dep’t of Human Servs., 2010 Ark. App. 798, 378 S.W.3d 290. Potential

harm must be viewed in a forward-looking manner and in broad terms. Collins v. Ark. Dep’t

of Human Servs., 2013 Ark. App. 90. Additionally, the risk for potential harm is but a factor

for the court to consider in its analysis. Carroll v. Ark. Dep’t of Human Servs., 85 Ark. App.

255, 148 S.W.3d 780 (2004).

Given this analysis, Jung’s arguments are not persuasive. Here, the trial court was

presented with evidence that Jung had not maintained stable employment at any time during

the case. While she was employed at the time of the termination hearing, she obtained that

employment only three days prior to the hearing. The only other employment she had

during the course of the case was a three-month stint with Tyson. This lack of financial

resources prevented her from obtaining stable housing or transportation and prevented her

from keeping her child-support payments current.

The trial court was also presented with Jung’s continued drug use throughout the case.

Jung admitted that she used drugs at the beginning of the case but notes that she had several

negative drug screens in April and May 2012. The trial court found the validity of the

negative drug screens to be suspect. Our review of the record supports this suspicion. Jung

submitted urine samples that tested negative for drugs. DHS suspected an invalid test because

the urine samples did not register a proper temperature. The sample was then submitted to

a pregnancy test to determine if the sample was in fact urine. The pregnancy test confirmed

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that the samples were urine and were also negative for pregnancy. Yet, it appears from the

record that Jung was pregnant at the time.2 This discrepancy calls the validity of those tests

into question. Moreover, Jung had only recently been released from an inpatient drug-

treatment center and had been on her own and sober for only three weeks prior to the

hearing. Even after her release, there was evidence presented that Jung may have attempted

to provide the caseworker with an adulterated urine sample. This evidence calls into question

the strength of Jung’s new-found sobriety.

A parent’s lack of stable housing or employment can demonstrate potential harm to a

child, as can a parent’s continued illegal-drug usage. See, e.g., Hall v. Ark. Dep’t of Human

Servs., 2012 Ark. App. 245, 413 S.W.3d 542 and Campbell v. Ark. Dep’t of Human Servs., 2013

Ark. App. 84, 426 S.W.3d 501. While there was some evidence that Jung was recently

employed and sober at the time of the hearing, there was insufficient proof that, given her

history, she could maintain employment or sobriety. As a result, it was not clear error for the

court to find that there was potential harm if the child was returned to Jung’s custody.

Jung next challenges the court’s determination that there were sufficient statutory

grounds to support termination. In order to terminate, in addition to the best-interest finding,

the court must find by clear and convincing evidence that one or more statutory grounds for

termination exists. Drake v. Ark. Dep’t of Human Servs., 2013 Ark. App. 274, at 11, 427

S.W.3d 710, 716 (citing Ark. Code Ann. § 9-27-341(b)(3)(B) (Supp. 2013)). However, proof

2
The evidence before the court at permanency planning indicated that Jung was
pregnant again and that Evans was the father of the child. The urine samples in question were
submitted after this hearing.

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of only one statutory ground is sufficient to terminate parental rights. Id. (citing Fenstermacher

v. Ark. Dep’t of Human Servs., 2013 Ark. App. 88, 426 S.W.3d 483).

Here, the trial court found several grounds upon which to support termination—one

being that the child had been adjudicated dependent-neglected, had been outside Jung’s care

for over twelve months, and that Jung had failed to remedy the cause for removal, see Ark.

Code Ann. § 9-27-341(b)(3)(B)(i)(a). There was sufficient evidence presented to support this

ground. N.E. had been adjudicated dependent-neglected and was removed from Jung’s

custody in May 2012. One of the causes of removal was Jung’s suspected drug usage. Jung

continued to use drugs during the course of the proceedings and had only recently completed

a drug-treatment program. Even after her completion of the program, there was evidence

that she had attempted to falsify a random drug screen just two days prior to the termination

hearing. This was sufficient to support the finding of a statutory ground for termination.

Affirmed.

GRUBER and VAUGHT, JJ., agree.

Leah Lanford, Arkansas Public Defender Commission, Dependency-Neglect

Appellate Division, for

Tabitha Baertels McNulty, Office of Policy and Legal Services, for appellee.

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