Crystal Fowler v. Arkansas Department of Human Services and Minor Child

Cite as 2021 Ark. App. 307
Elizabeth Perry ARKANSAS COURT OF APPEALS
I attest to the accuracy and
integrity of this document DIVISION IV
2023.07.06 12:43:53 -05'00' No. CV-21-13
2023.003.20215
Opinion Delivered September 1, 2021

CRYSTAL FOWLER APPEAL FROM THE PULASKI
APPELLANT COUNTY CIRCUIT COURT,
EIGHTH DIVISION
V. [NO. 60JV-19-902]

ARKANSAS DEPARTMENT OF HONORABLE WILEY A.
HUMAN SERVICES AND MINOR BRANTON, JR., JUDGE
CHILD
APPELLEES
AFFIRMED

BRANDON J. HARRISON, Chief Judge

Crystal Fowler appeals a Pulaski County Circuit Court order terminating her parental

rights to her child, IF. (The order also terminated the parental rights of IF’s father, Al

Coppak, but he is not a party to this appeal.) Fowler challenges both the statutory grounds

for termination and the circuit court’s best-interest finding. We affirm the circuit court’s

order.

On 7 June 2019, IF was born prematurely at thirty-one weeks and weighed three

pounds. He and Fowler stayed at the hospital for several weeks following his birth. Fowler

is married, but her husband is not the child’s father and did not visit the hospital. On 2 July

2019, the Arkansas Department of Human Services (DHS) received a report that Fowler

was incapable of caring for IF. Hospital staff said that Fowler exhibited “bizarre” behavior

and had “trouble telling dreams from reality.” DHS received reports that Fowler had

1
untreated mental-health issues, was homeless, appeared to have learning issues, and was not

able to adhere to a feeding schedule for IF because she could not tell time. Fowler had no

transportation and no appropriate baby items like a car seat, a crib, or a bed. Both hospital

staff and counselors who had previously worked with Fowler in Morrilton opined that

Fowler was not able to take care of herself, much less an infant.

Fowler told the DHS caseworker that she receives SSI due to a learning disability

and that Kayla White, a social worker at UAMS, was helping her find housing. Fowler

explained that she had received prenatal care in Oklahoma, where her father and stepmother

live, but they had “dropped her off at [a] hotel in Morrilton” prior to IF’s birth “because

they did not want to deal with her and [IF].” Fowler initially claimed she was capable of

taking care of IF but later acknowledged she needed help. The caseworker also spoke to

Fowler’s father who said that Fowler is “borderline mentally retarded” and that he “isn’t

sure if she is capable of taking care of an infant child.”

On July 30, DHS exercised a seventy-two-hour hold on IF due to concerns about

Fowler’s lack of housing and failure to take medications as prescribed for her mental-health

issues. DHS was granted emergency custody of IF, and the circuit court later adjudicated

IF dependent-neglected due to neglect and parental unfitness by Fowler. The adjudication

order specified:

The Court finds that the child is dependent neglected and that the
mother is not minimally fit or appropriate. . . . The primary issue with the
mother seems to be mental health, as the mother stated she has schizophrenia,
PTSD and bipolar. The mother had hallucinations and has been treated for
threats of self-harm. The court is not saying that people with these diagnoses
cannot parent, but in this particular case, it has caused some barriers. The
mother does lack stable housing, but this could be in part to her current
untreated mental health. The combination of mental health, emotional
2
concerns, and inappropriate plan does lead the Court to understand why the
social worker made the phone call to the child abuse hotline. The Court is
unsure if the mother is giving correct information or if the mother is capable
of doing so. The Court needs more information on the mother’s background.

The circuit court set the goal of the case as reunification and obtaining a permanent

custodian including permanent custody with a fit and willing relative.

On 30 January 2020, the circuit court entered a permanency-planning order in

which the court “hesitantly” accepted the goal of continuing toward reunification.

The mother was appointed a guardian ad litem and it remains to be
seen if she can parent a child or remain fit to parent a child. The goal of the
case seems contrary to the fact that the mother has a guardian ad litem. Dr.
DeRoeck, the Psychiatrist from Psychological Care Center, testified that he
did a psychological evaluation on both, the mother (Crystal Fowler) and the
father (Al Coppack [sic]). Regarding the mother, the Court cites directly
from the Impressions provided by Dr. DeRoeck in the psychological
evaluation (Petitioner’s Exhibit 8):

Based on the evaluation, a probable learning disorder
would be indicated. The assessment revealed a verbal
comprehension score within the mild deficient range. Ms.
Fowler’s nonverbal IQ is within the low average range of
intellectual development, however. Difficulty reading social
cues and comprehension as well as social communication issues
may be noted.

The overall assessment suggests an absence of alcohol or
drug abuse issues, from her perspective. Though having a
history of overuse of alcohol in the past, no self-medication
issues were noted.

Ms. Fowler alluded to schizophrenia diagnostic
consideration. Some mood swings and symptoms in excess of
posttraumatic stress traits were identified. A rule out of
schizoaffective disorder-bipolar type may be noted. Regardless,
she is prescribed medication to attenuate hallucinatory activity.
Some of the activity is associated with posttraumatic stress. She
alluded to a history of abuse/trauma during developmental years
with foster care placement.

3
She has a tendency to decompensate if under stress based
on the overall assessment. She is not taking a mood stabilizer.
No lability of mood was noted today, however. Close
monitoring of her response to medications as well as assessing
the possibility of benefitting from a [sic] mood stabilizers is
indicated.

Ms. Fowler will require assistance in stress management.
Developing more effective coping strategies would be helpful,
as well.

Her capacity to deal with reality will determine her
capacity to effectively parent. Close monitoring of her capacity
to effectively function would be necessary. I believe slow
reunification would be necessary due to her recent placement
on medications and possibly being in need of other
medications/treatment. However, with stabilization on
medications and significant supports in place via family, etc., I
believe there is evidence of the potential to effectively parent.

I believe it would be important to assess her
understanding of what is asked of her in the ultimate care of
[IF]. The possibility that she may not be able to care for him
cannot be ruled out at this point.

Prognosis is guarded and dependent on her response to
treatment.

Dr. DeRoeck testified that there are some concerns with the mother’s
parenting skills. Dr. DeRoeck recommended that the mother have close
monitoring of her responses to medication; develop stress and anxiety
management skills; participate in supportive counseling; supervised visitation
to monitor her interaction with her child; and family planning and birth
control education. Dr. DeRoeck did state that his report is guarded based on
the mother’s response to treatment and willingness to accept treatment.
Currently, he did not note the mother being unwilling to accept treatment.

....

Harrison Williams, therapist form HLH Consulting, testified that he
sees the mother for therapy, and they have completed 21 sessions. The
mother has officially completed therapy. However, Mr. Williams would be
willing to continue seeing the mother should DHS request more sessions. Mr.
Williams stated that the mother is working towards the goals and is
4
progressing. There are concerns with parent/child dependency, shelter,
moving into her own place, and obtaining support. It will be important that
the mother follows treatment goals. Mr. Williams is aware of the mother’s
PTSD and believes she could parent with PTSD. Mr. Williams has not seen
the mother interact with the child but would be willing to observe visits, with
DHS present.

The mother has obtained her own apartment and cleans at the
apartment complex. She is currently paid in cleaning supplies. She is not
currently on medication and does agree she needs to be on medication. She
was having difficulties getting a PCP in Little Rock. The mother is actively
participating in services, such as counseling, parenting and attending visits.
Visitations are going well, though the mother does have difficulties
understanding basic milestones the child must go through and maintaining
focus on the child. . . .

The Court finds that the mother has made efforts to comply, but it
remains to be seen if material progress has been made. It remains to be seen
if mom can raise a child and stay fit to parent a child. At this time, the mother
does not have the stress of raising a child as an added factor to the mother’s
life to know if she can handle the stress.

On 27 July 2020, the circuit court entered a second permanency-planning order,

which changed the goal of the case to adoption with a concurrent goal of relative placement.

The order recited that although Fowler had completed services, DHS did not believe it

would be safe to return IF to her. The order also stated,

The mother testified that her mental health status would cause her to
be unable to care for her child alone, though the mother testified that she also
believes she could take care of her child alone. The mother testified she
would have family support from her father and stepmother. The mother
stated her family has not come to a hearing due to the long drive from where
they live.

....

The Court finds that the mother has complied with court orders and
has been helped as much as she can be helped based on her mental health
history of long duration. The mother is represented by a Guardian Ad Litem
and if she is unable to stand on her own for court purposes, she is unable to
meet minimal standards of being a custodian. In order to consider someone
5
as a custodian, the parent must be minimally fit and appropriate. The mother
has improved her mental health condition since this case has started, but not
to the point of being a custodian of this child.

The court encouraged Fowler to continue working on herself but did “not foresee at this

point, given the mother’s long history and mental illness, that she can be fit to take the child.

. . . The best situation in this case would be established visits in which the mother can

maintain a relationship.” The court set the termination hearing for 8 September 2020.

On 30 July 2020, IF’s attorney ad litem petitioned to terminate Fowler’s parental

rights citing statutory grounds of failure to remedy cause of removal, failure to remedy

subsequent factors, and subjecting the child to aggravated circumstances. See Ark. Code

Ann. § 9-27-341(b)(3)(B)(i)(a), (vii)(a), & (ix)(a)(3)(A) (Repl. 2020). On August 31,

however, Fowler, through her guardian ad litem, moved for additional time to pursue the

concurrent goal of relative placement. Fowler asserted that, considering the psychological

evaluations of relatives and adequate home studies that are expected to be introduced into

evidence, it would be premature to proceed with the petition to terminate parental rights.

She argued that the psychological evaluations had been received on 19 August 2020 and

that the parties had not had time to implement the recommendations made by Dr.

DeRoeck, the evaluating psychologist. Fowler specifically noted the psychological

evaluation done on Catherine and Gary Crafton (Coppak’s sister and her husband) as well

as the ICPC ordered on Fowler’s father’s family in Lawton, Oklahoma, the result of which

had not yet been received.

The circuit court convened a hearing on September 8 as scheduled. At the outset,

DHS informed the court that it was not seeking termination of parental rights and that it

6
agreed with the motion for additional time to explore relative placement. The court

reserved ruling on the motion and proceeded with the hearing. Angela Brown, an adoption

specialist, testified that she had identified 213 potential families for IF, and she agreed that

he is “easily adoptable.”

Fowler testified that she had been living in Little Rock by herself for nine months

and that her income was $783 a month in Social Security disability benefits. She explained

that she was on medication for schizophrenia and bipolar disorder. She expressed a desire

for IF to “come with my parents and be with my mom and dad through my family.” When

asked if she could take care of IF, she said, “Ten years ago, I couldn’t, but now I think I

can.” If he could not be with her or her parents, she asked that IF stay with his foster parents

because they are “nice” and IF “knows them more than anybody else.” She confirmed that

she is still married. On cross-examination, she agreed that she had completed services as

ordered by the court. She said she was committed to staying on her medication and that

she wished to continue counseling. She explained that because of COVID-19, her visitation

with IF had consisted mainly of Facetime calls and that she had not seen him in person since

his birthday on 7 June 2020. She agreed that she would like to have more time to be a part

of IF’s life.

Trevar Dye, the DHS social worker assigned to IF’s case, testified that his

recommendation was to allow more time to work with the parties toward a relative

placement, specifically with Jamie and John Coppak (Coppak’s brother and his wife). Dye

said DHS was no longer considering Fowler’s father as an option because he had indicated

he was only willing to assist Fowler in taking care of IF. In addition, authorities in

7
Oklahoma had trouble getting in touch with Fowler’s father, thereby delaying the home

study. He agreed that Fowler had completed all the services offered to her but opined that

she had not remedied the situation that brought IF into care because DHS “still had some

concerns about her independently taking care of [IF] and doing that in a safe manner.” Dye

stressed that a “family connection” for IF was important to DHS, which is why he

recommended pursuing placement with the Coppaks. On cross-examination, he also agreed

that it was important for Fowler to have continued contact with IF, which could be

facilitated with a relative placement but not with a stranger adoption. Upon questioning by

the court, Dye agreed that the strongest bond that could be given to IF is an adoptive family

rather than permanent placement with a relative.

Lanie Davis, IF’s foster mother since his release from the hospital in July 2019,

testified that IF had underdeveloped lungs and a suck-and-swallow issue, which necessitated

feeding him on his side so he did not aspirate fluid into his lungs while drinking his bottle.

He also experienced respiratory distress due to his underdeveloped lungs and had been

hospitalized three times over the past year. She described his condition now as “pretty

healthy” but said his lung issues will be a life-long condition that requires monitoring. She

confirmed that she had supervised the Facetime visits with Fowler and that Fowler was

“genuinely interested in her son during visitation.”

From the bench, the circuit court ruled that the ad litem had proved all three

statutory grounds alleged against Fowler and that adoption was in IF’s best interest.

Specifically addressing aggravated circumstances, the circuit court remarked that “it is

unlikely that further services offered to these parents will result in a successful reunification

8
within a reasonable period of time as measured from a child’s perspective and consistent

with the child’s developmental needs.”

In its written order, the court found that Fowler had complied with services but was

unable, due to her mental-health issues and low functioning, to be minimally fit to take care

of IF. The court found that the conditions that had brought IF into care had not been

remedied, that Fowler lacked the capacity to remedy the circumstances that had brought IF

into DHS custody, and that there was little likelihood that services to Fowler would render

her minimally fit to safely care for IF. The court also found that IF faced potential harm if

returned to Fowler because she remained unfit and that IF is adoptable. The court explained

that adoption is preferable in this situation because IF is a “one-year-old child who has his

whole life ahead of him” and “needs to be in a long-term, peaceful placement.” The court

noted that interested relatives could still be considered as adoptive placements. Fowler has

timely appealed the court’s order.

In order to terminate parental rights, a circuit court must find by clear and convincing

evidence that termination is in the best interest of the child taking into consideration (1) the

likelihood that the child 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). The circuit 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). Only one

ground is necessary to terminate parental rights. Lee v. Ark. Dep’t of Hum. Servs., 102 Ark.

App. 337, 285 S.W.3d 277 (2008).

9
Termination-of-parental-rights cases are reviewed de novo. Tillman v. Ark. Dep’t of

Hum. Servs., 2015 Ark. App. 119. The appellate inquiry is whether the circuit court’s

finding that the disputed fact was proved by clear and convincing evidence is clearly

erroneous. Id. 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. Williams v. Ark. Dep’t of Hum. Servs., 2013 Ark. App. 622. In

resolving the clearly erroneous question, we give due regard to the opportunity of the circuit

court to judge the credibility of witnesses. Camarillo-Cox v. Ark. Dep’t of Hum. Servs., 360

Ark. 340, 201 S.W.3d 391 (2005).

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

rights of parents, but parental rights will not be enforced to the detriment or destruction of

the health and well-being of the child. Friend v. Ark. Dep’t of Hum. Servs., 2009 Ark. App.

606, 344 S.W.3d 670. The purpose of the termination-of-parental-rights statute, Ark. Code

Ann. § 9-27-341(a)(3), is to provide permanency in a child’s life in all instances in which

the return of a child to the family home is contrary to the child’s health, safety, or welfare,

and it appears from the evidence that a return to the family home cannot be accomplished

in a reasonable period of time, as viewed from the child’s perspective. 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. Shaffer v. Ark. Dep’t of Hum. Servs., 2016 Ark.

App. 208, 489 S.W.3d 182.

Fowler first asserts that all three statutory grounds relied on by the circuit court allow

a parent’s rights to be terminated when the parent has failed to correct some deficiency or

10
impediment that prevents the return of the child to the home. In this case, the factual basis

for all three grounds was that Fowler’s mental health and mental capacity prevented her

from appropriately parenting and successfully reunifying with IF. She argues that the

testimony at the termination hearing, however, demonstrated that she had done exactly

what was recommended—she had maintained a home for nine months and controlled her

mental-health issues with medication. She had also taken parenting classes and expressed

willingness to accept assistance from her family in caring for IF.

Fowler acknowledges that the caseworker testified that DHS still had concerns about

her parenting abilities, but she argues that those concerns stemmed from instances that

occurred at visitations when the case began and prior to the completion of services. Six

months after IF’s adjudication, the COVID pandemic necessitated that her visits switch to

virtual, and DHS stopped supervising the visits. Fowler argues that in the six months

immediately preceding the termination hearing, she had no hands-on opportunities to

demonstrate the parenting skills she had learned and how she had benefited from the services

provided. These circumstances, she asserts, support the argument that she be given

additional time to demonstrate her improvements and for DHS to continue investigating

relative placements. She contends that it was “complete conjecture” to say she had not

benefited from services and that “[w]ithout more hands-on visitation or interaction, there

was no way for anyone to formulate a fact-based opinion regarding any improvement in her

ability to care for IF.” Fowler also takes issue with the ad litem’s failure to present relevant

evidence from Fowler’s counselor and argues that the circuit court was not given all the

11
“pertinent information” to determine whether she had benefited from services and could

properly parent.

In response, the ad litem asserts that there was sufficient evidence to prove at least

one ground for termination. He first discusses the aggravated-circumstances ground, which

states that parental rights may be terminated when a court has determined that there is little

likelihood that services to the family will result in successful reunification. He explains that

the circuit court received testimony and exhibits throughout the case related to Fowler’s

life-long mental-health struggles and that the court’s orders reveal an ongoing concern with

Fowler’s ability to improve her condition enough to successfully care for IF on her own.

And at the time of the termination hearing, thirteen months after the case had begun, the

caseworker agreed that there were no additional services that would help Fowler adequately

remedy her situation. The ad litem contends that Fowler herself appeared to recognize her

limitations because her first request was that IF be placed with her father and stepmother,

and she never claimed that she was prepared to care for IF on her own. Considering IF’s

ongoing medical needs, Fowler’s life-long mental-health issues, and the caseworker’s

agreement that there were no further services that would result in reunification, the ad litem

asserts that the circuit court did not err in its finding of aggravated circumstances. He also

argues that the same evidence supports the circuit court’s failure-to-remedy finding.

We hold that the circuit court did not clearly err in its aggravated-circumstances

finding. The evidence supports the circuit court’s finding that further services would not

result in a successful reunification within a reasonable period of time as measured from IF’s

perspective and consistent with his developmental needs. Fowler claims a lack of evidence

12
before the circuit court—specifically, information from her counselor—but she did not call

her counselor as a witness nor did she call her father to affirm her plan to parent IF with his

help. While the circumstances are unfortunate, this court is not left with a definite and firm

conviction that a mistake has been made. Because only one statutory ground is necessary

to terminate parental rights, we need not discuss the other statutory grounds.1 Lee, supra.

As to Fowler’s request for additional time due to COVID restrictions during the

pendency of the case, the ad litem asserts that this argument is raised for the first time on

appeal and therefore not preserved for our review. Alternatively, the ad litem contends that

the request for more time was appropriately denied because a child’s need for permanency

overrides a parent’s request for additional time to improve circumstances, and courts will

not enforce parental rights to the detriment of the well-being of the child. See McElwee v.

Ark. Dep’t of Hum. Servs., 2016 Ark. App. 214, 489 S.W.3d 704. We hold that the circuit

court did not err in denying the request for more time and that any COVID-specific

argument was not raised or ruled on below. See Perry v. Ark. Dep’t of Hum. Servs., 2021

Ark. App. 193, 625 S.W.3d 374 (holding that we will not address arguments raised for the

first time on appeal, even in termination cases).

Fowler next argues that the circuit court’s best-interest determination was wrong for

two reasons: (1) insufficient evidence of potential harm and (2) the availability of less-

1
Fowler argues, and the ad litem agrees, that the circuit court erred in basing its ruling
in part on the subsequent-factors ground. The court’s stated reason for its finding on that
ground is that Fowler “lacked the capacity to remedy the circumstances that brought [IF]
into DHS custody.” We agree that this is not a sufficient basis for this statutory ground, but
the error is harmless given our disposition of the case.
13
restrictive alternatives. She first contends that the same arguments that support reversal on

the statutory grounds support a reversal of the best-interest finding. She notes that the

caseworker did not think that she posed a risk of harm to IF and, on the contrary, believed

it was in IF’s best interest to continue contact with her and to be with relatives. Fowler also

recites two less-restrictive alternatives that the circuit court could have and should have

considered—reunification with her with an approved support system in place or a relative

placement. She stresses that her father had been an option since the beginning of the case,

but DHS had not properly considered him or other relatives that were available. Echoing

her previous argument, she asserts that the case had been open only thirteen months and

that “it would not have been detrimental to give [her] additional time for the home studies

to be completed on all the relatives.”

In support, Fowler cites Benedict v. Arkansas Department of Human Services, 96 Ark.

App. 395, 242 S.W.3d 305 (2006), and claims that Benedict held that “it is proper and

appropriate to allow additional time and services when parents are striving to be good

parents, especially if the parent is hindered because of the parent’s intellectual or

psychological deficiencies.”2 And finally, Fowler stresses that it was the circuit court that

2
The actual holding of Benedict is as follows: “We hold that on this record, where
appellant has by all accounts cooperated with the orders of the court, benefited from the
services provided by DHS, and shown objective improvement to the benefit of the children,
the circuit court clearly erred in terminating appellant’s parental rights.” Id. at 412, 242
S.W.3d at 319. We also note that the appellant in Benedict suffered from postpartum

14
continued to list relative placement as a goal of the case but then terminated parental rights

without receiving all relevant information on available relatives.

The ad litem responds that the same concerns that support the statutory grounds for

termination also support the circuit court’s potential-harm finding. Again, Fowler herself

indicated that she could not care for IF alone as her plan was to take care of him with

assistance from her father and stepmother. But the evidence throughout the case showed

that her relationship with her father was not the most stable, considering he is the one who

left her in Morrilton when she was about to give birth to IF, and he was not cooperative

with Oklahoma officials in getting a home study done. And as noted above, Fowler offered

no testimony from him at the hearing, so the court did not know the full extent of his

willingness to care for IF.

As to other relative placements, the ad litem points out that the circuit court held

open the possibility of a relative as an adoptive placement. The main goal of the court was

to provide permanency for IF, and if relatives wanted to be considered in that process, they

would have the opportunity to do so. But the circuit court’s findings reflect the primary

purpose of the Juvenile Code, which is to provide permanency and stability in a child’s life

when the child cannot be returned to the family home within a reasonable amount of time

depression that was eliminated through treatment over the course of the case, and the
condition that led to her children’s removal—neglect and a dirty and unsafe home—was
remedied.

15
as viewed from the child’s perspective. Considering the facts of this case and IF’s need for

permanency, we hold that the circuit court did not err in its best-interest determination.

Affirmed.

GRUBER and MURPHY, JJ., agree.

Tabitha McNulty, Arkansas Commission for Parent Counsel, for appellant.

Casey D. Copeland, attorney ad litem for minor child.

16