Drake v. Arkansas Department of Human Services

Cite as 2014 Ark. App. 475

ARKANSAS COURT OF APPEALS
DIVISION I
No. CV-14-306

VIRGIL DRAKE Opinion Delivered September 17, 2014
APPELLANT
APPEAL FROM THE SEBASTIAN
V. COUNTY CIRCUIT COURT,
FORT SMITH DISTRICT
[NO. JV-12-426]
ARKANSAS DEPARTMENT OF
HUMAN SERVICES and MINOR HONORABLE MARK HEWETT,
CHILD JUDGE
APPELLEES
AFFIRMED

PHILLIP T. WHITEAKER, Judge

Virgil Drake appeals from a Sebastian County Circuit Court order terminating his

parental rights to his son, C.D. Because this finding was supported by clear and convincing

evidence, we affirm.

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

Servs., 344 Ark. 207, 40 S.W.3d 286 (2001). To terminate parental rights, at least one

statutory ground must be proved by clear and convincing evidence. Ark. Code Ann. §

9-27-341 (Repl. 2009); see M.T. v. Ark. Dep’t of Human Servs., 58 Ark. App. 302, 952

S.W.2d 177 (1997). Drake concedes that the Department sufficiently established a statutory

ground for termination—the prior involuntary termination of his parental rights to other

children—and that the child was adoptable. His only challenge to the termination is the

court’s determination that potential harm would befall the child if custody was returned to
Cite as 2014 Ark. App. 475

him. Thus, the issue for our consideration is whether the court’s finding that it was in the

child’s best interest to terminate parental rights was proved by clear and convincing evidence.

M.T., supra.

Clear and convincing evidence is that degree of proof that will produce in the

fact-finder a firm conviction as to the allegation sought to be established. Anderson v. Douglas,

310 Ark. 633, 839 S.W.2d 196 (1992). 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, 947 S.W.2d 761 (1997). As a

result, a review of the facts is crucial to our determination.

Tammie and Virgil Drake met in 2000 and subsequently married. Three children were

born to them during the course of their marriage—B.D., K.D., and C.D.1 This case began

in April 2012, when C.D. was taken into emergency custody by the State of Oklahoma

shortly after his birth. C.D. was removed after hospital staff advised an Oklahoma child-

welfare worker that Tammie had not been providing care for the child, was leaving the baby

with nursing staff, and had expressed a fear of being alone with the newborn. At the time of

C.D.’s birth, the Arkansas Department of Human Services (DHS) had already initiated

dependency-neglect proceedings for K.D. and B.D. In June 2012, the State of Oklahoma

found C.D. to be “deprived” under Oklahoma law after the parents failed to appear, and C.D.

became a ward of the court. Because of the open, pending case on B.D. and K.D. in

1
Tammie’s parental rights to four other children—K.G., S.G., C.G., and
D.G.—were terminated in Nebraska in 1997 and 2002.

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Cite as 2014 Ark. App. 475

Arkansas, C.D.’s case was transferred by the Oklahoma district court to Sebastian County

Circuit Court in July 2012.

Upon transfer to Arkansas, the circuit court had two open dependency-neglect cases:

one involving B.D. and K.D., and one involving C.D. In both cases, the circuit court

addressed the issues of Tammie Drake’s mental health and substance abuse, as well as Virgil’s

failure to recognize the risk of danger that Tammie presented to the children. In October

2012, the circuit court entered an order terminating the Drakes’ parental rights to B.D. and

K.D.2 In its order, the court noted that Tammie Drake suffered from mental-health and

substance-abuse issues; that she failed to remain on her prescribed medication; that she had

been provided services to address those issues; and that, despite the services offered, she had

been either unwilling or unable to address and correct those issues. As to Virgil, the court

noted that Virgil Drake did not recognize that Tammie presented a risk of harm to the

juveniles if left in her care, despite being provided appropriate services to educate him. The

court further found that Virgil was either unwilling or unable to provide for their safety due

to his lack of awareness regarding Tammie’s mental-health and substance-abuse problems as

evidenced by his leaving the children with Tammie as the primary caregiver while he worked

16 hours a day.

In October 2013, a year after the termination of appellant’s rights to B.D. and K.D.,

DHS filed a petition for termination of the Drakes’ parental rights to C.D., alleging that

2
The termination to B.D. and K.D. was upheld by this court in Drake v. Arkansas
Department of Human Services, 2013 Ark. App. 274, 427 S.W.3d 710.

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Cite as 2014 Ark. App. 475

Tammie presented a risk of danger to the child due to her mental-health and substance-abuse

issues and that Virgil was either unwilling or unable to provide for the child’s safety. After

a hearing on the petition in December 2013, the trial court entered an order terminating the

Drakes’ parental rights.3 The December 2013 order terminating the Drakes’ parental rights

to C.D. mirrored the October 2012 termination order with respect to C.D.’s siblings in

several aspects. Like the October 2012 order, the December 2013 order focused, in large

part, on Tammie’s ongoing mental-health issues and her failure to adequately follow through

on treatment. The court stressed that Tammie’s “extensive, long-standing, and ongoing

mental health issues” made Tammie a danger to juveniles placed in her care or supervision

and that her failure to comply with her treatment plan in this case paralleled her prior and

repeated failure to do so in previous cases, which had resulted in termination of her parental

rights as to those juveniles. And, like the October 2012 order, the December 2013 order

reiterated Virgil’s inability or unwillingness to acknowledge the danger Tammie posed to the

children.

After outlining these facts, the trial court found the requisite statutory ground for

termination (prior involuntary termination of a sibling) had been proved and, that it would

be in C.D.’s best interest to terminate their parental rights. The court found that C.D. was

adoptable and that C.D. would be subject to a great risk of potential harm if returned to the

custody of either parent. The court found that Tammie Drake continued to suffer from

3
Tammie Drake did not appeal the decision terminating her parental rights and, thus,
she is not a party to this appeal.

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Cite as 2014 Ark. App. 475

extensive, long-standing, and ongoing mental-health issues that make her a danger to C.D.

if placed in her care or supervision; that she did not accept her role in what had happened to

her children and instead blames others; that Virgil Drake did not recognize that Tammie

presented a danger to C.D.; that he was unwilling to provide sufficient protection for

juveniles placed in Tammie’s care; and that C.D. was so young that he could not protect

himself from the danger that Tammie presented. Accordingly it was in C.D.’s best interest

to terminate the Drakes’ parental rights.

On appeal, Virgil argues that it was error for the trial court to terminate his parental

rights because it was not in C.D.’s best interest to do so. More specifically, Virgil argues that

there had been no evidence of a single occasion where Tammie’s current mental-health issues

posed a danger to C.D or that Virgil had improperly entrusted C.D. to Tammie’s care. Thus,

the trial court erred in determining that there was potential harm in returning C.D. to his

care. We disagree.

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).

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Cite as 2014 Ark. App. 475

The evidence presented to the trial court in this case supports its potential-harm

finding. The trial court was entitled to consider the findings contained in the previous

termination order as a backdrop to these hearings. The Drakes’ parental rights to C.D.’s

siblings had been terminated a little over a year previously. One of the issues upon which the

prior termination was based was the danger posed by Tammie’s mental-health issues and

Virgil’s denial of that danger. In the case involving C.D., both parents had been offered

services, but the court concluded that the previous issues had not yet been resolved.

Testimony was then presented at the termination hearing that, while Tammie had been placed

on medication for her mental-health issues, she had not attended individual counseling, had

not been consistent in attending medical-management meetings, and had at least one outburst

with the family service worker that was out of proportion to the circumstances and was of

concern. From this evidence, the trial court could properly conclude that Tammie was not

successfully managing the very issues that resulted in the prior terminations and a potential

threat of harm remained to C.D. as a result. Despite this evidence, and despite having his

parental rights to two other children terminated because of the danger Tammie posed, Virgil

still continued to assert that Tammie posed no danger to C.D. or any other child and saw no

danger in allowing Tammie to be the child’s caregiver. Given C.D.’s age and inability to

protect himself if placed in Tammie’s care, it was not clearly erroneous for the trial court to

determine that there was a potential threat of harm to C.D. if placed in Virgil’s care.

Affirmed.

GRUBER and VAUGHT, JJ., agree.

Leah Lanford, Arkansas Public Defender Commission, Dependency-Neglect Appellate
Division, for appellant.
Tabitha Baertels McNulty, Office of Policy and Legal Services, for appellee.

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