Hamilton v. Arkansas Department of Human Services

Cite as 2016 Ark. App. 420

ARKANSAS COURT OF APPEALS
DIVISION IV
No. CV-16-399

SABRINA HAMILTON Opinion Delivered: September 21, 2016
APPELLANT

V. APPEAL FROM THE WASHINGTON
COUNTY CIRCUIT COURT
[NO. 72JV-2014-223]
ARKANSAS DEPARTMENT OF
HUMAN SERVICES and MINOR HONORABLE STACEY
CHILDREN ZIMMERMAN, JUDGE
APPELLEES
AFFIRMED

RITA W. GRUBER, Judge

Sabrina Hamilton appeals the October 8, 2015 order of the Circuit Court of

Washington County that terminated her parental rights and the parental rights of Justin

Jackson to K.J. (born on March 4, 2011), B.H.1 (born on January 7, 2013), and B.H.2 (born

on February 13, 2014). She challenges the circuit court’s findings that the Arkansas

Department of Human Services (DHS) had proved that the children would be subject to

potential harm if returned to her custody and that there were statutory grounds on which to

base termination. Jackson is not a party to this appeal.

In ordering that parental rights be terminated, the trial court must make two findings

by clear and convincing evidence: at least one statutory ground must exist, and termination

must be in the child’s best interest. Ark. Code Ann. § 9-27-341(b)(3) (Repl. 2015). In

making a “best interest” determination, the trial court must consider two factors: the
Cite as 2016 Ark. App. 420

likelihood that the child will be adopted and the potential harm to the child if custody is

returned to a parent. Ark. Code Ann. § 9-27-341(b)(3)(A). Clear and convincing evidence

is such a degree of proof that produces in the fact-finder a firm conviction regarding the

allegation to be established. Harbin v. Ark. Dep’t of Human Servs., 2014 Ark. App. 715, 451

S.W.3d 231. Our review of a termination of parental rights is de novo. Id. Our inquiry is

whether the trial court’s finding that the disputed fact was proved by clear and convincing

evidence is clearly erroneous; credibility determinations are left to the fact-finder. Id.

On April 1, 2014, DHS exercised an emergency 72-hour hold on 3-year-old K.J.,

15-month-old B.H.1, and 2-month-old B.H.2 to protect them from harm. The hold was

based on DHS’s determination that the juveniles were in imminent danger due to Hamilton’s

exhibiting belligerent, aggressive, argumentative behavior; being under the influence of

methamphetamine; and being the children’s only primary custodian. On April 4, 2014, DHS

filed a petition for emergency custody and dependency-neglect, accompanied by the affidavit

of family-services worker Evelyn Ponce setting forth the following events that occurred on

April 1 when she went on an investigation and located Hamilton. Hamilton appeared

nervous, her hands were “a little shaky,” and she “turn[ed] her head constantly in a jerky way

when speaking.” When Ponce asked her to undergo a drug screen, she refused and became

hostile. Jackson was incarcerated at the time. Ponce telephoned her supervisor and was told

to take a hold on the three juveniles. Ponce instructed Hamilton to get the children ready.

Hamilton began cussing, then agreed to do the drug test, but would not follow through when

she was informed that Ponce would need to be present in the restroom. Hamilton again

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began cussing and became hostile, so Ponce telephoned the police. Hamilton admitted that

her test would be positive for methamphetamine and marijuana. Later, at the DHS office, she

agreed to be tested; the results were positive for methamphetamine, amphetamine, and

cannabinoids. On April 4, 2014, the court entered an ex parte order for emergency custody

of K.J., B.H.1, and B.H.2.

In an April 10, 2014 probable-cause order, the circuit court found probable cause that

the emergency conditions necessitating the children’s removal from the parents’ custody

continued and that it was contrary to their welfare to be in Hamilton’s custody due to her

“unaddressed substance abuse issues.” The order required, in part, that she cooperate with

DHS, participate in individual counseling, not use illegal drugs or alcohol, have a drug-and-

alcohol assessment and follow recommendations, submit to random drug screens, obtain and

maintain stable housing and employment, and follow the case plan and court orders. B.H.2

was to remain in DHS custody and in his separate foster home; K.J. was to begin play therapy;

K.J. and B.H.1 were to be placed with their maternal grandmother, Kathleen Standley, subject

to a home study, and—while placed there—Hamilton was to have visitation with K.J. and

B.H.1, supervised by Standley.

In a June 9, 2014 adjudication order, the court found that the juveniles were

dependent-neglected and at substantial risk of serious harm due to parental unfitness,

specifically because of Hamilton’s erratic behavior and positive drug tests on April 1 and

because B.H.2 had been malnourished. Hamilton was ordered to cooperate with DHS,

participate in individual counseling within 30 days, not use illegal drugs or alcohol, submit to

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drug screens at least bi-weekly, complete 12 hours of parenting classes within 2 months,

obtain and maintain stable housing and employment, and follow the case plan and court

orders. B.H.2 was to remain in DHS custody, and K.J. and B.H.1 were provisionally placed

with Grandmother Standley. The goal of the case was set as reunification with Hamilton.

In a review order of October 8, 2014, Hamilton was found to be in partial compliance

with court orders and the case plan. The juveniles had been removed from provisional

custody with Standley and were to remain in DHS custody.1 Returning them to Hamilton’s

custody was found to be contrary to their welfare because her progress was insufficient: she

had not yet demonstrated stability or an ability to protect the three juveniles and keep them

safe from harm. She had not maintained stable housing, had not “participated in random drug

screens as requested,” had violated a court order by having unsupervised contact with her

children, and had not completed inpatient drug treatment as recommended. She had

maintained stable employment, had participated in counseling, and had completed the

parenting classes. The goal remained reunification.

In a permanency-planning order of February 25, 2015, the court ordered that the

children remain in DHS custody. The court changed the goal of the case from reunification

to adoption and authorized the filing of a petition for termination of parental rights. The

court found that Hamilton had not complied with all court orders and the case plan. She had

recently been arrested. She had maintained stable housing and employment, had participated

1
In September 2014, K.J. and B.H.1. were removed from Standley’s home because
her home was “infested with roaches” and she was allowing Hamilton to have unsupervised
visits with the children—a violation of court orders.

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in counseling, had completed a 6-month hair-follicle test with negative results, had not

“participated in all requested drug screens,” and had not “completed inpatient drug

treatment.” She had attended visits and submitted to a psychological evaluation, but she had

not followed recommendations of the evaluation and had not addressed her substance-abuse

and mental-health issues.

A review hearing was conducted in August 2015. In its review order of August 31,

2015, the court noted that the attorney ad litem had withdrawn her petition for termination.

The court noted that Jackson had recently been released from prison and found that the

parents had not made sufficient progress. The court found it appropriate to begin supervised

in-home visits with Hamilton and Jackson; however, the visits would move to the DHS office

“if [K.J.] has increased anxiety or negative reaction to visits being in the home.” The court

found that Hamilton was not in compliance with “most” of the court orders and case plan:

[S]he has not submitted to weekly random drug screens; she has changed jobs. She has
maintained housing with her mother; she completed parenting classes; she has
completed counseling; she obtained a private hair follicle test, which was negative.
[K.J.] has special needs & anxiety & has diarrhea after visits with Mom—reacting
negatively to visits with Mom.
....

Mom cannot meet the needs of all of her 4 children. (Newborn . . . born 5/27/2015)
lives with Mom.)

The goal of the case remained adoption of K.J., B.H.1, and B.H.2.

A second permanency-planning hearing was conducted in September 2015. In its

September 24, 2015 order, the court found that Hamilton had not complied with court orders

and the case plan in the following ways:

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Mother has not submitted to random drug screens as ordered. Mother failed a drug
screen for THC in 2015. This positive drug screen has been sent for confirmation.
The lab reported evidence that the urine specimen had been adulterated. THC was
not found. Mother has not demonstrated an ability to protect her children and keep
them safe from harm. Mother has not demonstrated an ability to meet the needs of
her four (4) children, as the three children named in this foster care case have special
needs. [K.J.] reacts negatively to visits with Mother.

Again, the goal of the case remained adoption of K.J., B.H.1, and B.H.2.

On October 8, 2015, DHS filed its petition for termination of parental rights, stating

that termination was in the best interest of K.J., B.H.1, and B.H.2, and setting forth three

statutory grounds for termination:

(i)(a) That the juveniles have been adjudicated by the court to be dependent-neglected
by the Court on June 5, 2014 and have continued out of the custody of the parents
for twelve (12) months and, despite a meaningful effort by the department to
rehabilitate the parents and correct the conditions that caused removal, those
conditions have not been remedied by the parents (see A.C.A. § 9-27-
341(b)(3)(B)(i)(a)),

(ii)(a) The juveniles have lived outside the home of the parents for a period of twelve
(12) months, and the parent has willfully failed to . . . maintain meaningful contact
with the juveniles (see A.C.A. § 9-27-341(b)(3)(B)(ii)(a)),

(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 juveniles in the custody
of the parent is contrary to the juveniles’ health, safety, or welfare and that, despite the
offer of appropriate family services, the parents have manifested the incapacity or
indifference to remedy the subsequent issues or factors or rehabilitate the parents’
circumstances which prevent the placement of the juvenile in the custody of the
parents (see A.C.A. § 9-27-341(b)(3)(B)(vii)(a)).

See Ark. Code Ann. § 9-27-341(b)(3)(B) (Repl. 2015).

In a written order of November 24, 2015, the court suspended the visitation of both

parents. The court noted that it had “consistently had concerns for the well-being and

emotional and physical health of [K.J.] during the life of this case.”

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The termination hearing was held on January 27, 2016, when K.J. was nearly five,

B.H.1 was three, and B.H.2 was almost two. The court granted the petition to terminate at

the hearing’s conclusion, finding by clear and convincing evidence that termination was in

the juveniles’ best interest and that DHS had proved the three statutory grounds alleged in its

petition. The court stated in its written order that, in determining best interest, the court had

specifically considered both the likelihood that the juveniles would be adopted and the

potential harm to their health and safety if they were returned to their parents’ custody.

Hamilton challenges the finding of potential harm and the existence of the three statutory

grounds.

I. Potential Harm

Hamilton first addresses the opinion of family services worker Haley Carson that

Hamilton could not meet the three juveniles’ “special needs” and that none of the three

juveniles could be safely returned to her. She disputes three factors to which Carson testified:

emotional harm and inability to meet the children’s special needs, drug use, and missed

visitations and Hamilton’s arrest.

Hamilton contends that the children had no “special needs” for her to meet. She

points to testimony by B.H.2’s pediatrician that early feeding issues after B.H.2’s birth had

been resolved and to the preschool director’s testimony that B.H.1’s speech issues from the

time he had entered foster care subsequently improved to the point that he was 99 percent

understandable. Hamilton concedes that K.J. initially struggled emotionally with her foster-

care placement and her relationship with Hamilton and that K.J. had anger outbursts, anxiety,

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and sleeping issues after visits with her “for a long time.” She points to testimony by K.J. and

B.H.1’s foster mother that K.J.’s issues eventually lessened; that things fell apart a year into the

case when the court ordered visits with Jackson; and that K.J. and B.H.1 experienced

regression issues after their only in-home visit with Jackson present—necessitating an

emergency call to the therapist. Hamilton asserts that K.J.’s “special need” was clearly agitated

by contact with Jackson rather than Hamilton and that DHS’s approach, which simply ended

Hamilton’s visits without addressing K.J.’s need through therapeutic sessions, was

counterproductive to reunification.

Hamilton also asserts that the record does not indicate that she used drugs since at least

August 2014, 17 months before the termination hearing. She points to her challenge of the

positive marijuana test results, found to have been adulterated; to negative results of her two

hair-follicle tests—one ordered by DHS and a private test that she obtained; to her progress

in housing, employment, parenting, and counseling; and to her testimony that she never “flat-

out refused” to take drug tests and could not risk losing her job in an effort to comply with

test times.

Finally, Hamilton disagrees that her missed visitations and arrest constituted a factor

of potential harm and risk to the juveniles. Acknowledging Carson’s testimony of nine missed

visits between November 2015 and January 2016, Hamilton points to her own testimony that

she had undergone surgery and that she and the baby had been sick for several months before

the January hearing. Regarding her arrest, she notes her testimony that she was detained for

failure to appear on an underlying charge of no seatbelt and failure to register her vehicle, that

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she was detained for only two hours, that her youngest child was with her at the time, and

that she took care of the arrest issue after arranging for her mother to provide childcare.

DHS responds that the finding of potential harm is not clearly erroneous for the

following reasons. First, Hamilton failed to comply with court orders by not undergoing drug

screens as scheduled. She claimed that she could not come in for testing because of work, but

only once took advantage of Carson’s offer to reschedule. Hamilton was a no-show for about

70 percent of her drug screens—with 100 percent missed in the 5 months preceding the

January 2016 termination hearing—and her second hair-follicle test—the private one—had

been in August 2015. Second, Hamilton never obtained stable housing; rather, she chose to

live with her mother—where provisional placement had failed. Third, the testimony of K.J.’s

therapist, Tammy Pearson; psychiatric nurse practitioner Jennifer Penny; and Maria Johnson,

K.J. and B.H.1’s foster mother of 16 months, specifically showed a lack of bond between

Hamilton and K.J.

DHS notes testimony pertinent to the finding of potential harm. Pearson stated that

K.J. rarely mentioned her mother but that when Pearson would bring up the subject, “K.J.

will almost immediately become very flat or have a frown on her face. She’ll rub between

her eyes as if she has a headache . . . very frequently grab her stomach and say she has a

stomachache.” Penny testified that during discussions about Hamilton, K.J. would have

physical complaints such as stomachache, would appear to be fearful and less secure—looking

around the room and darting her eyes. Johnson testified to the following:

[D]uring the life of this case, I did have concerns for K.J. surrounding her visits with
her parents or with her mom. Those concerns were anxiety issues, which at the time

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I didn’t realize were—that it was anxiety, the stomachaches, and became aware of an
increase of attention-getting things. She said a lot of—which were strange to me, “My
bottom hurts.” She would come up with these crazy different ideas of
attention-getting things, wanting me, you know, just wanting me to nurture her, hold
her, not wanting to go to sleep, and especially after visits. There wasn’t ever a lot of
discussion before visits. She’s never really asked, she’s never cried . . . asked for
[Hamilton], wanted to go home, but after a visit, when I would take note, there didn’t
seem to be a big display, but then afterward or following, . . . much increased . . .
anxiety, outburst behavior, tantrums, sleep issues.

In determining potential harm, which is forward-looking, the court may consider past

behavior as a predictor of likely potential harm should the child be returned to the parent’s

care and custody. Dowdy v. Ark. Dep’t of Human Servs., 2009 Ark. App. 180, 314 S.W.3d

722. There is no requirement that every factor be established by clear and convincing

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

termination is in the best interest of the child. Harbin, 2014 Ark. App. 715, at 3, 451 S.W.3d

at 233. Parental rights should not be allowed to continue to the detriment of the child’s

welfare and best interest. See J.T. v. Ark. Dep’t of Human Servs., 329 Ark. 243, 947 S.W.2d

761 (1997). The appellate court gives a high degree of deference to the trial court, which is

in a far superior position to observe the parties before it. Taffner v. Ark. Dep’t of Human Servs.,

2016 Ark. 231, at 6, ___ S.W.3d ___, ___.

The circuit court noted in its order of termination that the juveniles had been in foster

care for 668 days; had been traumatized when they were initially removed from their home

and again, as to K.J. and B.H.1 when they were removed from the provisional foster home

of their grandmother due to a roach infestation; and that all three juveniles had made “huge

progress” in foster care. The court further found,

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that Mother cannot meet the special needs of all four (4) of her children and that
although mother is adequately caring for her new baby, . . . that Mother cannot meet
the needs of her other three (3) children and that the issues which caused these three
(3) children to come into foster care have not been remedied. Throughout this case,
the Mother has never once been in full compliance with the case plan and court
orders. The children need stability, structure, and permanency; Mother cannot meet
these needs.

We hold that the circuit court did not clearly err in finding that K.J., B.H.2, and B.H.1 would

be subject to potential harm if returned to Hamilton’s custody.

II. Statutory Grounds

We note that only one statutory ground in section 9-27-341(b)(3)(B) need be proved

to support termination. Sims v. Ark. Dep’t of Human Servs., 2015 Ark. App. 137, at 7. We

affirm under the first ground found by the circuit court, the failure to remedy conditions that

caused removal.

Hamilton argues that the initial cause of removal was severe drug use, but there was

“no evidence” of a remaining drug issue and DHS felt that she could keep her youngest child

in the home. We have previously discussed her nearly identical arguments in the potential-

harm section of our opinion. We also note that, in determining that Hamilton failed to

remedy conditions which caused removal, the circuit court found that she was not in full

compliance with the case plan and court orders:

Hamilton still has not submitted to random weekly drug screens (having missed ALL
her drug screens (19) since the last hearing). The Court also finds that [she] has missed
nine (9) of her scheduled visits since September of 2015. The Court finds that the root
cause of this case still has not been remedied by the Mother.

We hold that the circuit court did not clearly err in terminating Hamilton’s parental rights

under the failure-to-remedy ground.

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Were we to address the court’s finding of the subsequent-factors ground, we would

hold that the circuit court did not clearly err. See Cotton v. Ark. Dep’t of Human Servs., 2012

Ark. App. 455, at 11, 422 S.W.3d 130, 138 (holding that a lack of compliance with the case

plan and court orders supported termination under this ground).

Affirmed.

WHITEAKER and HOOFMAN, JJ., agree.

Leah Lanford, Ark. Pub. Defender Comm’n, for appellant.

Andrew Firth, County Legal Operations, for appellee.

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

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