Dunn v. Arkansas Department of Human Services

Cite as 2016 Ark. App. 34

ARKANSAS COURT OF APPEALS

DIVISION III
No. CV-15-721

JAMIE DUNN AND WILLIAM Opinion Delivered: JANUARY 20, 2016
DUNN
APPELLANTS APPEAL FROM THE PULASKI
COUNTY CIRCUIT COURT,
V. ELEVENTH DIVISION
[NO. 60JV-14-361]

ARKANSAS DEPARTMENT OF HONORABLE PATRICIA ANN JAMES,
HUMAN SERVICES AND MINOR JUDGE
CHILDREN
APPELLEES AFFIRMED

KENNETH S. HIXSON, Judge

Appellants William Dunn and Jamie Dunn appeal from the termination of their

parental rights to their two daughters, I.D., age three, and K.D., age one. Jamie also appeals

from the termination of her parental rights to G.L., her five-year-old son from a previous

relationship. 1 On appeal, William and Jamie challenge the sufficiency of the evidence

supporting the termination of their parental rights. We affirm.

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

Human Servs., 2013 Ark. App. 715, 430 S.W.3d 851. 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.

1
G.L.’s putative father abandoned G.L., and his parental rights were also terminated.
G.L.’s putative father did not appeal.
Cite as 2016 Ark. App. 34

2015); M.T. v. Ark. Dep’t of Human Servs., 58 Ark. App. 302, 952 S.W.2d 177 (1997).

Clear and convincing evidence is that degree of proof that will produce in the factfinder 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). 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. Yarborough

v. Ark. Dep’t of Human Servs., 96 Ark. App. 247, 240 S.W.3d 626 (2006).

In March 2014, William and Jamie were living in a hotel with the two older children.

The youngest child, K.D., was born on March 7, 2014.

On March 17, 2014, appellee Arkansas Department of Human Services (DHS) filed

a petition for emergency custody of all three children. Attached to the petition was an

affidavit of a family service worker stating that K.D. had tested positive for marijuana at

birth and was diagnosed with polycythemia. Upon being investigated, Jamie admitted to

smoking marijuana to help relieve contraction pains while pregnant with K.D. Both parents

were drug screened, and both William and Jamie tested positive for marijuana and

methamphetamine. Jamie also tested positive for PCP. K.D. was released from the hospital

on March 14, 2014, and DHS took an emergency hold of all three children. On March 17,

2014, the trial court entered an order for emergency DHS custody.

The trial court entered a probable-cause order on March 19, 2014. In the probable-

cause order, the trial court ordered that the parties undergo a psychological evaluation,

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submit to random drug screens, and submit themselves to a drug-and-alcohol assessment

and follow any recommendations. The parties were also ordered to maintain stable housing

and employment.

On May 7, 2014, the trial court entered an order adjudicating the children

dependent/neglected based on the trial court’s finding that the children had been subjected

to parental unfitness and neglect due to their parents’ drug use. The adjudication order

noted that both I.D. and G.L. had tested positive on a hair-follicle test for amphetamines,

meth, cannabinoids, and THC. The goal of the case was reunification.

A review order was entered on August 27, 2014, wherein the trial court found that

William and Jamie were mostly in compliance with the case plan, and that William had a

good job and needed to keep it. However, on February 11, 2015, the trial court entered a

review/permanency-planning order stating that William had lost his job and had spent forty-

five days in jail for failure to pay child support for his child from a prior relationship. That

order noted that Jamie had been noncompliant with the case plan, and that although she

had obtained employment at a discount store, she was fired two weeks later and was

currently unemployed. The trial court also found that the parents had failed to maintain

stability and that both had recently tested positive for THC. The goal of the case was

changed to termination of parental rights and adoption.

DHS filed a petition to terminate both parents’ parental rights on April 2, 2015. The

termination hearing was held on May 4, 2015.

On June 9, 2015, the trial court entered an order terminating William’s and Jamie’s

parental rights as to the three children. The trial court found by clear and convincing

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evidence that termination of parental rights was in the children’s best interest, and the court

specifically considered the likelihood that the children would be adopted, as well as the

potential harm of returning them to the custody of their parents as required by Arkansas

Code Annotated section 9-27-341(b)(3)(A)(i) & (ii) (Supp. 2015). The trial court also

found, with respect to both parents, clear and convincing evidence of the following two

statutory grounds under subsection (b)(3)(B):

(vii)(a) That other factors or issues arose subsequent to the filing of the original
petition for dependency-neglect that demonstrate that placement of the juvenile in
the custody of the parent is contrary to the juvenile’s health, safety, or welfare and
that, despite the offer of appropriate family services, the parent has manifested the
incapacity or indifference to remedy the subsequent issues or factors or rehabilitate
the parent’s circumstances that prevent the placement of the juvenile in the custody
of the parent.

....

(ix)(a) The parent is found by a court of competent jurisdiction, including the
juvenile division of circuit court, to:
(3)(A) Have subjected any juvenile to aggravated circumstances.
(B) “Aggravated circumstances” means:
(i) . . . [A] determination has been made by a judge that there is little
likelihood that services to the family will result in successful
reunification[.]

With respect to Jamie only, the trial court further found that DHS proved statutory grounds

under subsection (b)(3)(B)(i)(a), which provides:

That a juvenile has been adjudicated by the court to be dependent-neglected and has
continued to be out of the custody of the parent for twelve (12) months, and, despite
a meaningful effort by the department to rehabilitate the parent and correct the
conditions that caused removal, those conditions have not been remedied by the
parent.

Dr. Paul DeYoub, a forensic psychologist, testified at the termination hearing.

Dr. DeYoub performed psychological evaluations on both William and Jamie. He

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diagnosed William and Jamie with cannabis-use disorder, and his greatest concern was their

drug use and denial of the same. Dr. DeYoub was also concerned about their lack of

stability. Dr. DeYoub stated that both William and Jamie were capable of maintaining

employment.

Jamie testified that, since the children were removed from her custody, she has had

four different residences, including living in a hotel, living with her mother, and living with

a friend. Jamie also stated that she was unemployed and had not worked for almost a year.

Jamie acknowledged that she had a drug problem, and she tested positive for THC on hair-

follicle tests administered in January and March of 2015. However, Jamie denied any illegal

drug use during 2015, explaining that the positive drug tests were probably the result of

living with an every-day marijuana user. Jamie indicated that she previously had her parental

rights terminated to four other children due to her drug use. She also stated that she gave

birth to another child six weeks before the termination hearing.

William testified that he has a drug problem and that his drug of choice is marijuana.

However, he stated that he is seeking help for his drug problem and has not used marijuana

since the children were removed from their custody in March 2014. However, William

tested positive for THC on a urine screen in December 2014, and again tested positive on

a hair-follicle test in March 2015. He blamed the positive results on being around other

people who use drugs.

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William acknowledged having multiple jobs and residences since this case was

opened. He was presently working as a mechanic, and he and Jamie had been living in the

same residence for a little more than three months. William testified:

As for what I’m asking the court today, I know it’s impossible to ask for the children
to be returned today. I mean, that’s not fathomable. We have other stuff we need
to work through, I want the opportunity to prove that we are going to continue to
be stable.

Latasha Gause, a family-service worker, testified that both parents had completed

outpatient drug counseling in August 2014. However, since that time both of them have

had positive drug screens. Latasha indicated that both parents had missed numerous

scheduled visits with the children, and she said that until recently they had not had a

stable housing situation. Latasha testified that the children need permanency, and she

recommended termination of parental rights.

Brenda Keith is an adoption specialist for DHS. Brenda testified that there were no

factors that would prohibit adoption of the three children and that the likelihood of adoption

was high.

In this appeal, William challenges each of the statutory grounds found by the trial

court in support of the termination order. 2 In addition, both William and Jamie challenge

2
In appellant’s brief, Jamie concedes that there were indisputable statutory grounds
proved against her because she had her parental rights involuntarily terminated as to four
siblings of the children at issue. See Ark. Code Ann. § 9-27-341(b)(3)(B)(ix)(a)(4) (Supp.
2015). Although the trial court did not make a finding on this ground, it was alleged in
DHS’s termination petition and it was proved. See Fenstermacher v. Ark. Dep’t of Human
Servs., 2013 Ark. App. 88, 426 S.W.3d 483.
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the trial court’s finding that termination of their parental rights was in the best interest of

the children.

William contends that none of the statutory grounds supported termination of his

parental rights, asserting that he has made progress since the case began and is presently

employed with stable housing. Although William tested positive for THC in December

2014 and March 2015, he notes that on numerous other occasions he had negative drug

screens. He submits that this is not a case where he chose drugs over his children as found

by the trial court in the termination order, and he asserts that he had complied with the case

plan and was working toward reunification with the children.

Only one statutory ground must be proved to support the termination. Willingham

v. Ark. Dep’t of Human Servs., 2014 Ark. App. 568. We conclude that the trial court

committed no error in finding that the children had been subjected to aggravated

circumstances pursuant to Ark. Code Ann. § 9-27-341(b)(3)(B)(ix)(a)(3) because there was

little likelihood that services to the family would result in successful reunification. Although

William testified that he no longer uses drugs, he tested positive for THC less than seven

weeks before the termination hearing, and the trial court specifically found William not

credible. Although William was employed at the time of the termination hearing, his

employment and housing situation had been sporadic throughout the fourteen months since

the children were removed. William acknowledged at the termination hearing that it was

impossible to ask for the return of his children at that time, and on this record we hold that

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the trial court did not clearly err in finding that William had subjected his children to

aggravated circumstances.

Both William and Jamie also argue that termination of parental rights was not in the

best interest of the children. Appellants acknowledge their addiction to drugs, but assert

that each of them has made progress and complain that, if being a recovering addict is the

standard by which a parent is gauged, no child of a recovering addict could ever be returned

to the home. William and Jamie also contest the trial court’s finding that the children would

be at risk of potential harm if returned to their custody. Appellants note that Jamie has

recently had another child who was not removed from their custody, and contend that if

that baby is not at risk in their care, neither would be the older three children.

We hold that the trial court did not clearly err in finding that termination of

appellants’ parental rights was in the best interest of the children. Although the most recent

child born to the appellants remains in their custody, our inquiry focuses only on the best

interest of the three children involved in this appeal. The evidence on potential harm must

be viewed in a forward-looking manner and considered in broad terms, and the trial court

is not required to find that actual harm will result or to affirmatively identify potential harm.

Chaffin v. Ark. Dep’t of Human Servs., 2015 Ark. App. 522, 471 S.W.3d 251. In addition,

we have held that a child’s need for permanency and stability may override a parent’s request

for additional time to improve the parent’s circumstances. Dozier v. Ark. Dep’t of Human

Servs., 2010 Ark. App. 17, 372 S.W.3d 849.

In this case both parents, whom the trial court specifically found to be not credible,

tested positive for illegal drugs a year after the removal of their children. William’s

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employment history has been inconsistent, and Jamie remains unemployed despite having

the ability to work. Appellants’ housing situation has also been unstable. Both parents

visited the children only sporadically, and there was evidence that the children were doing

very well in foster care and were highly adoptable. William acknowledged at the

termination hearing that the children could not yet be returned to their parents’ home.

Contrary to the appellants’ argument, the trial court did not terminate parental rights

based on their alleged addiction to marijuana. The trial court terminated parental rights due

to the fact that William had been incarcerated, neither parent could sustain consistent

employment or housing, both tested positive for marijuana shortly before the termination

hearing, and William admitted that after fourteen months of DHS involvement the parents

were unable to accept custody of the children. Considering the evidence before the trial

court, we conclude that the trial court’s finding that termination was in the children’s best

interest was not clearly erroneous.

Affirmed.

HARRISON and VAUGHT, JJ., agree.

Leah Lanford, Arkansas Public Defender Commission, for appellant.

Jerald A. Sharum, Office of Chief Counsel, for appellee.

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

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