Sarut v. Arkansas Department of Human Services

Cite as 2015 Ark. App. 76

ARKANSAS COURT OF APPEALS
DIVISION III
No. CV-14-878

REBECCA SARUT Opinion Delivered February 11, 2015
APPELLANT
APPEAL FROM THE WASHINGTON
V. COUNTY CIRCUIT COURT
[NO. JV 2013-123-3]

ARKANSAS DEPARTMENT OF HONORABLE STACEY
HUMAN SERVICES AND A.B.1, A.B.2, ZIMMERMAN, JUDGE
AND A.B.3, MINOR CHILDREN
APPELLEES AFFIRMED

RITA W. GRUBER, Judge

Appellant, Rebecca Sarut, appeals from an order of the Washington County Circuit

Court terminating her parental rights to her children: A.B.1, born April 21, 2008; A.B.2,

born October 29, 2010; and A.B.3, born March 29, 2012. She contends on appeal that the

evidence was insufficient to support the circuit court’s decision, specifically the court’s

findings of grounds for termination and potential harm. We find no error and affirm the

circuit court’s order.

The events that led to the termination began in February 2013, when local law

enforcement contacted the Arkansas Department of Human Services (DHS) for assistance

with appellant’s three children. Appellant and the children’s father, Franklin Boyt, were

living in a hotel room in Washington County with the children.1 Mr. Boyt had been sent

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Mr. Boyt’s parental rights were terminated in an order entered on May 5, 2014. He
has not filed an appeal from that order. Mr. Boyt and appellant were still married at the time
Cite as 2015 Ark. App. 76

to the hospital for an apparent drug overdose. Appellant appeared inebriated and was slurring

her words and stumbling with A.B.3 in her arms. She tested positive for methamphetamine,

opiates, and benzodiazepines and admitted to using methadone. The hotel room was filthy:

dirty dishes with molded food, piles of dirty clothes on the floor, and piles of dirty clothes

on the children’s beds. The children were dirty and eating grapes covered in kool-aid

powder when DHS arrived. Appellant also had a history with DHS—a true finding of

newborn illegal-substance abuse—because she and A.B.2 tested positive for amphetamines

at the time of A.B.2’s birth in October 2010.

DHS assumed immediate emergency custody of the children, and the court

adjudicated them dependent-neglected in an order entered March 18, 2013. The court also

made a true finding against both parents for inadequate supervision and environmental

neglect. The court ordered appellant to undergo a drug-and-alcohol assessment and follow

the recommendations, submit to weekly random drug screens, complete parenting classes,

obtain and maintain stable housing and employment, demonstrate the ability to protect the

children and keep them safe from harm, and pay weekly child support in the amount of $30.

The goal of the case was set as reunification.

In a review order five months later, the court found that appellant had completed

many of the requirements but had missed her drug-and-alcohol assessment and had not

rescheduled. The court also found that she had missed some random drug screens. Finally,

the court ordered her to “we[a]n off methadone.”

of appellant’s termination hearing but were no longer living together.

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The court reviewed the case again in December 2013. In its order of December 20,

2013, the court found that appellant had not “we[a]ned down/off on her methadone” and

was “still at Phase One after nearly 3 years of methadone treatment.” The court found that

she needed to complete inpatient treatment to address her addiction to opiates. The court

also determined that she had failed to maintain stable housing and to complete a drug-and-

alcohol assessment.

In a permanency-planning order entered February 5, 2014, the court established

concurrent goals of reunification and adoption, found that DHS had made reasonable efforts

to provide family services toward reunification, and stated that appellant had made

“substantial progress.” However, the court also found that appellant was still on methadone,

had not completed inpatient treatment, and still had no stable housing. The court again

ordered appellant to “get off methadone.”

After a second permanency-planning hearing conducted three months later, the circuit

court found that, despite services offered and opportunity given, appellant still was not

prepared to care for her three children, finding that she “has not gotten off methadone, has

not completed inpatient drug treatment, has not submitted to drug screens, has not

maintained stable employment, [and has] not obtained drug/alcohol assessment.” The court

changed the goal to adoption, authorizing DHS to pursue termination of appellant’s parental

rights.

At the termination hearing, appellant’s case worker Miranda Collins testified that the

children had been in foster care for seventeen months, that appellant had been ordered for

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the entire seventeen months to obtain a drug-and-alcohol assessment but had failed to obtain

one, and that appellant resided with her mother, whose home had been found to be

inappropriate for the children after a home study was conducted for placement. Ms. Collins

testified that appellant was unable to enter residential substance-abuse treatment, which the

court ordered in December 2013, because she became pregnant and no facility would accept

her for treatment if she was taking methadone while pregnant. Ms. Collins testified that the

children were placed together in foster care and were doing very well. All three were on

track developmentally and had “come a long way since coming into care.” She also testified

that the children were highly adoptable and that the current foster home was a potential

permanent placement for all three children. She opined that it was in the children’s best

interest to terminate appellant’s parental rights, that appellant had not demonstrated the

ability to parent and care for the children, and that DHS had not received the child support

from appellant that the court ordered in March 2013.

Appellant testified that she had been living with her mother in a two-bedroom

apartment, although recognizing that the home had been deemed inappropriate for her

children, so that her mother could help while she was pregnant. She stated that she had been

going to NA meetings but had no proof of that fact. She also testified that she had given birth

the week before the hearing, that the child had been born positive for methadone, and that

she had “signed over” her rights to the infant’s father (not Mr. Boyt). She also admitted that

she was not current on her child support, stating that she was “a little bit behind on paying.”

Regarding why she had failed to obtain a drug-and-alcohol assessment for almost a year and

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a half, she said she missed her appointment because she had another appointment for

something (she could not remember what) and that DHS had not given her a new referral.

She testified that she was still taking methadone but that she was almost “completely done

with it.” Finally, she testified that she was still married to Mr. Boyt, that she had not seen

him since he had been out of jail, that she hardly ever talked to him, and that he had come

to the hearing with her sister and not with appellant.

The attorney ad litem recommended termination, arguing that the children needed

permanency, that they had been out of appellant’s care for a good portion of their lives, and

that they had been thriving in their foster home. She was concerned with appellant’s

continued long-term addiction to methadone and her inability to wean herself off it.

In its oral pronouncement from the bench, the circuit court expressed concern about

how appellant would be able to support her three children when she had been unable to pay

court-ordered child support of only $30 per week. The court was very concerned that, after

more than three years of treatment, appellant had been unable to wean off methadone. This,

coupled with her failure to obtain a drug-and-alcohol assessment or complete inpatient

treatment to address her addiction, convinced the court that appellant could not safely and

properly parent her children. The court also recognized that appellant was still married to Mr.

Boyt, who continued to have a relationship with her family. The court was concerned that

continued contact with Mr. Boyt, whose parental rights had been terminated, would be

harmful to the children.

In its order, the court found by clear and convincing evidence that termination was

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in the children’s best interest, including consideration of the likelihood of adoption and the

potential harm to the children caused by continued contact with appellant. The court also

found clear and convincing evidence of three grounds: (1) the children had been adjudicated

dependent-neglected and out of the custody of appellant for twelve months, and despite a

meaningful effort by DHS to rehabilitate the parent and correct the conditions that caused

removal, those conditions had not been remedied; (2) the children lived outside the home

of the parent for a period of twelve months and the parent had willfully failed to provided

significant material support, here court-ordered child support; and (3) other factors or issues

arose subsequent to the filing of the original petition that demonstrate that return of the

children to appellant’s custody is contrary to their health, safety, or welfare and that, despite

the offer of appropriate family services, appellant has manifested the incapacity or indifference

to remedy the subsequent issues or factors or rehabilitate the circumstances that prevent

return to her custody. Ark. Code Ann. § 9-27-341(b)(3)(B) (Supp. 2013).

We review termination-of-parental-rights cases de novo. Dinkins v. Ark. Dep’t of

Human Servs., 344 Ark. 207, 213, 40 S.W.3d 286, 291 (2001). 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

(Supp. 2013). In making a “best interest” determination, the trial 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. Ford v. Ark. Dep’t of Human Servs.,

2014 Ark. App. 226, at 2, 434 S.W.3d 378, 380. Adoptability is not an essential element but

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is rather a factor that the trial court must consider. Id. Likewise, 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 Human Servs., 2010 Ark.

App. 781, at 10, 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. Id. The appellate inquiry is whether the trial court’s finding that the

disputed fact was proved by clear and convincing evidence is clearly erroneous. J.T. v. Ark.

Dep’t of Human Servs., 329 Ark. 243, 247, 947 S.W.2d 761, 763 (1997). Credibility

determinations are left to the fact-finder, here the trial court. Schaible v. Ark. Dep’t of Human

Servs., 2014 Ark. App. 541, at 8, 444 S.W.3d 366, 371.

The intent behind the termination-of-parental-rights statute is to provide permanency

in a child’s life when it is not possible to return the child to the family home because it is

contrary to the child’s health, safety, or welfare, and a return to the family home cannot be

accomplished in a reasonable period of time as viewed from the child’s perspective. Ark.

Code Ann. § 9-27-341(a)(3) (Supp. 2013). Even full compliance with the case plan is not

determinative; the issue is whether the parent has become a stable, safe parent able to care

for his or her child. Schaible, 2014 Ark. App. 541, at 8, 444 S.W.3d at 371; Ford, 2014 Ark.

App. 226, at 3. 434 S.W.3d at 381. Finally, a parent’s past behavior is often a good indicator

of future behavior. Schaible, 2014 Ark. App. 541, at 8, 444 S.W.3d at 371.

For her first point on appeal, appellant argues that the evidence was insufficient to

support the court’s findings on all three grounds for termination. With regard to the first

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ground, appellant argues that DHS failed to plead a factual basis to support this ground in its

petition. As support for her argument, she cites case law explaining that termination will not

be allowed solely on the basis of a ground not pleaded in the petition for termination. See,

e.g., K.C. v. Ark. Dep’t of Human Servs., 2010 Ark. App. 353, 374 S.W.3d 884. That is not

the situation here. All three grounds found by the court to support termination were

specifically pleaded in the petition for termination. Appellant was on notice of all three

grounds and had the opportunity in a hearing to be heard. In the alternative, she argues that

she remedied the conditions that caused removal because, although still married to Mr. Boyt,

she was no longer living with him; although she continued to use methadone, she had not

tested positive for methamphetamine since the time of removal; and, although she missed her

appointment for a drug-and-alcohol assessment, there had been no further discussion of an

assessment until March 2014, when she was pregnant and was unable to obtain inpatient

treatment. We turn to the evidence presented to support the court’s finding. Appellant’s

children were taken into custody for inadequate supervision due to the parents’ drug use and

environmental neglect due to inappropriate housing. Appellant was, admittedly, still addicted

to methadone at the hearing, had failed either to have a drug-and-alcohol assessment or to

obtain inpatient drug treatment, and was admittedly living in a home that had previously

been deemed inappropriate for her children. We hold that the court’s finding of this ground

is not clearly erroneous.

With regard to the failure-to-support ground, appellant contends that she testified that

she was “a little behind” on paying child support but that she did have enough income to

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support her children. She argues that there was clearly conflicting testimony regarding her

child-support-payment history. Perhaps. But appellant’s caseworker testified that appellant

had not paid child support as ordered. Appellant testified that she was behind but offered no

evidence of any payments. Credibility determinations are for the circuit court to make.

Schaible, 2014 Ark. App. 541, at 8, 444 S.W.3d at 371. Again, we cannot say that the circuit

court’s finding is clearly erroneous. Further, because only one statutory ground is necessary

to support termination, it is not necessary to address appellant’s argument regarding the third

ground.

For her second point on appeal, appellant argues that the record is “devoid” of any

evidence of potential harm to the children if returned to her custody. 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. Schaible, 2014 Ark. App. 541, at 9,

444 S.W.3d at 372. 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. Id.

Here, the court was very concerned with appellant’s inability and seeming indifference

to overcoming her drug addiction. After more than three years of treatment, appellant had

been unable to wean off methadone. This, coupled with her failure to obtain a drug-and-

alcohol assessment and her failure to complete inpatient treatment to address her addiction,

convinced the court that appellant could not safely and properly parent her children. The

court was also concerned with appellant’s failure to obtain and maintain stable housing. She

was living with her mother at the time of the hearing in a two-bedroom apartment that had

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been determined to be inappropriate for the children. Finally, the court recognized at the

hearing that appellant was still married to Mr. Boyt, who continued to have a relationship

with her family. The court was concerned that continued contact with Mr. Boyt would be

harmful to the children. The court is not required to find that actual harm would result or

to affirmatively identify a potential harm. Harbin v. Ark. Dep’t of Human Servs., 2014 Ark.

App. 715, at 12, ___ S.W.3d ___, ___. We find no clear error in the circuit court’s finding

that termination of appellant’s parental rights was in the children’s best interest.

Affirmed.

KINARD and BROWN, JJ., agree.

Dusti Standridge, for appellant.

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

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