Smith v. Arkansas Department of Human Services

Cite as 2013 Ark. App. 753

ARKANSAS COURT OF APPEALS
DIVISION III
No. CV-13-685

REBEKAH SMITH and DAVID WISER Opinion Delivered December 18, 2013
APPELLANTS
APPEAL FROM THE BENTON
V. COUNTY CIRCUIT COURT
[NO. J-2012-202-D/N]

ARKANSAS DEPARTMENT OF HONORABLE THOMAS SMITH,
HUMAN SERVICES and MINOR JUDGE
CHILDREN
APPELLEES AFFIRMED

RITA W. GRUBER, Judge

Appellants, Rebekah Smith and David Wiser, appeal from an order of the Benton

County Circuit Court terminating their parental rights to their children: D.W., born July 17,

2007, and S.W., born September 18, 2008. On appeal, they argue that the circuit court erred

in terminating their rights when (1) the Department of Human Services made no efforts to

assist them in reunification, and there was a reasonable expectation that, with additional time,

they could obtain stability and care for the children; and (2) there was no testimony at the

termination hearing regarding the adoptability of the children. We hold that there was no

error, and we affirm the circuit court’s order terminating appellants’ parental rights.

On March 20, 2012, the Department of Human Services (DHS) exercised an

emergency hold over the children after appellants were arrested on drug charges, including

manufacturing methamphetamine in the home where the children were living. The parents

remained in jail or prison throughout this case: on October 1, 2012, Ms. Smith was
Cite as 2013 Ark. App. 753

sentenced to 60 months in prison plus an additional 120 months suspended, and Mr. Wiser

was sentenced to 48 months in prison plus an additional 60 months suspended. At the

permanency planning hearing on January 29, 2013, the court changed the goal from

reunification to adoption and ordered DHS to explore placement of the children with their

maternal grandmother.

The court entered an order terminating appellants’ parental rights on May 7, 2013,

finding by clear and convincing evidence that termination of parental rights was in the best

interest of the children, including consideration of the likelihood that the children would be

adopted and the potential harm caused by returning the children to their parents’ custody.

The court specifically found by clear and convincing evidence that the children were

adoptable and that DHS had identified a potential adoptive home for them. The court also

specifically found that the parents had used methamphetamine throughout the lives of the

children and had a long history of instability and drug use; that there was still a significant

time in the lives of the children before their parents would be released from incarceration and

thereafter have time to show stability and the ability to remain drug free; that the parents

were in the beginning stages of the process of drug treatment and would require long-term

treatment upon release from incarceration; that the children needed a permanent home to

progress with their own mental-health treatment; that the parents had not seen the children

since they were removed on March 20, 2012; and that the mother intended to relocate to

California where the children were living when she was released from prison. The court also

found the existence by clear and convincing evidence of two statutory grounds: (1) the

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children had been out of the parents’ custody for more than 12 months and, despite a

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

removal, those conditions have not been remedied by the parents; and (2) the parents were

sentenced in a criminal proceeding for a period of time that would constitute a substantial

period of the children’s lives. Ark. Code Ann. § 9-27-341(b)(3)(B)(i), (viii) (Supp. 2011).

We review cases involving the termination of parental rights de novo. Grant v. Ark.

Dep’t of Human Servs., 2010 Ark. App. 636, 378 S.W.3d 227. The grounds for termination

must be proved by clear and convincing evidence. Id. When the burden of proving a

disputed fact is by clear and convincing evidence, the question on appeal is whether the

circuit court’s finding that the disputed fact was proved by clear and convincing evidence is

clearly erroneous, giving due regard to the opportunity of the circuit court to judge the

credibility of the witnesses. Welch v. Ark. Dep’t of Human Servs., 2010 Ark. App. 798, at 7,

378 S.W.3d 290, 294. 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. Id. A heavy burden is placed on the party seeking

the termination of parental rights because it is an extreme remedy in derogation of the natural

rights of the parents. Id. Nevertheless, parental rights will not be enforced to the detriment

or destruction of the health and well-being of the child. Welch, 2010 Ark. App. 798, at 7–8,

378 S.W.3d at 294.

The termination of parental rights is a two-step process that requires the circuit court

to find that the parent is unfit and that termination is in the best interest of the child. J.T. v.

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Ark. Dep’t of Human Servs., 329 Ark. 243, 947 S.W.2d 761 (1997). The first step requires

proof of one or more of the statutory grounds for termination. Ark. Code Ann. § 9-27-

341(b)(3)(B). The second step requires consideration of whether the termination of parental

rights is in the children’s best interest. Ark. Code Ann. § 9-27-341(b)(3)(A). This includes

consideration of the likelihood that they will be adopted and the potential harm caused by

returning custody of them to the parent. The court, however, does not have to determine

that every factor considered be established by clear and convincing evidence. Instead, after

considering all of the factors, the evidence must be clear and convincing that the termination

is in the best interest of the child. McFarland v. Ark. Dep’t of Human Servs., 91 Ark. App. 323,

210 S.W.3d 143 (2005).

We turn first to appellants’ argument that the circuit court erred in terminating their

rights because DHS made no effort to assist them in reunification and there was a reasonable

expectation that, given additional time, they could have obtained stability and the ability

adequately to care for their children. This challenge applies to the ground that the children

had been out of the parents’ custody for more than 12 months and, despite a meaningful

effort by DHS to rehabilitate the parents and correct the conditions that caused removal,

those conditions have not been remedied by the parents. Ark. Code Ann. § 9-27-

341(b)(3)(B) (i). But the court in this case specifically found an alternative ground by clear

and convincing evidence: that is, that appellants had been incarcerated since March 20, 2012,

and had received sentences that would constitute a substantial period of the children’s lives.

Ark. Code Ann. § 9-27-341(b)(3)(B)(viii). Ms. Smith received a five-year sentence and Mr.

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Wiser received a four-year sentence. This ground does not require DHS to provide

“meaningful efforts” to rehabilitate the parents. Only one statutory ground is necessary to

terminate parental rights. Lee v. Ark. Dep’t of Human Servs., 102 Ark. App. 337, 345, 285

S.W.3d 277, 282 (2008). We hold that there is clear and convincing evidence to support this

alternative ground for termination, and therefore we hold that the trial court did not clearly

err in terminating appellants’ parental rights.

For their second point on appeal, appellants contend that the court erred in

terminating their rights where there was no testimony presented from which the court could

consider the children’s adoptability. Arkansas Code Annotated section 9-27-341(b)(3)(A)

requires the court, in determining whether termination is in the best interest of the children,

to consider the likelihood that they will be adopted if the termination petition is granted. We

have held that adoptability is but one factor that is considered when making a best-interest

determination and that no factor must be established by clear and convincing evidence;

rather, after consideration of all factors, the evidence must be clear and convincing that

termination is in the best interest of the children. Renfro v. Ark. Dep’t of Human Servs., 2011

Ark. App. 419, at 6, 385 S.W.3d 285, 288.

While no one in this case testified that “the children are adoptable,” we have no

doubt that the court did what it was statutorily required to do—that is, consider the

likelihood that the children would be adopted. At the time of the hearing, the children were

living with their maternal grandmother in California, who already had custody of another

child of Ms. Smith. Our de novo review of the evidence indicates that everyone at the

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hearing was aware that the maternal grandmother was the potential adoptive parent. Sheila

Beckton, a behavioral therapist and social worker who counseled the children, testified that

it was very important for these children to develop a secure attachment to an adult and to

know that the adult was not going to leave them. She was very concerned about the parents’

ability to regain custody in a few years and the instability that would create. She testified that

it would take “a while” for the children to build a strong attachment to their grandmother

and that they needed to know that the placement with her was going to be permanent.

Mark Bright, the children’s DHS foster-care worker, testified that the ultimate goal

for the children was for “grandmother to adopt so she would have permanent custody of the

kids.” He testified that he believed adoption by the children’s grandmother to be in their best

interest because of his concern with appellants’ history of drug use and the children’s safety

and stability. Finally, the following excerpt is from the testimony of Cassandra Middleton,

the CASA worker assigned to the case:

APPELLANTS’ ATTORNEY: And you think that terminating their rights and
having the grandmother adopt will prevent the parents from being in the children’s
lives?

CASSANDRA: No, I don’t think that—I don’t see how that would keep the parents
from being in the children’s lives, if they’re with her mother. Obviously, she’s going
to have contact with the mother.

She summed up her testimony by opining that adoption by the grandmother would be better

than permanent custody because then the parents could not come back and remove custody

from the grandmother.

The attorneys’ arguments, while not evidence, also demonstrate that no one at the

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hearing was confused about whether DHS thought the children were adoptable and that the

grandmother had been chosen as an appropriate adoptive placement. The attorney ad litem

answered the court’s question regarding whether she was sure that the grandmother was

prepared to adopt these children, stating that she was. The ad litem attorney said that she had

spoken with the grandmother and that the grandmother had said that she would do whatever

was necessary to protect the children. Finally, appellants’ attorney acknowledged that DHS

had stated “that the children [were] both adoptable.” These statements and arguments of

counsel demonstrate that the issue of adoptability was before the court.

Most importantly, the court made a specific finding that the children were adoptable.

It then found, “While the parents may in future years end up having contact with the

juveniles, the children need to know that the home they are currently in will be their

permanent home and that they won’t be removed or taken out of that home.”

Although the better practice may be for DHS to introduce testimony that the children

are adoptable and that DHS has a potential adoptive placement, the statute does not require

any “magic words” but merely provides that the court consider the likelihood that the

children will be adopted in making its best-interest determination. Adoptability is not an

essential element of proof, McDaniel v. Ark. Dep’t of Human Servs., 2013 Ark. App. 263, and

reversing on this point in this case would be the epitome of placing form over substance. Our

review of the testimony, arguments, and findings convince us that DHS, the CASA worker,

the children’s therapist, and the court believed that these children were adoptable and that

the grandmother had stated that she intended to adopt them. To reverse for failure of the

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circuit court to consider a factor when it is apparent that the court considered it would

subvert one of the primary purposes of termination: “to provide permanency in a juvenile’s

life in all instances in which the return of a juvenile to the family home is contrary to the

juvenile’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

juvenile’s perspective.” Ark. Code Ann. § 9-27-341(a)(3); see also Fredrick v. Ark. Dep’t

Human Servs., 2009 Ark. App. 652. Because the record demonstrates that the court

considered the likelihood of adoption as part of its best-interest analysis, we reject appellants’

argument.

For the foregoing reasons, we affirm the circuit court’s order terminating appellants’

parental rights.

Affirmed.

HARRISON and WOOD, JJ., agree.

Deborah R. Sallings, Arkansas Public Defender Commission, for appellants.

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

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

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