Anderson v. Arkansas Department of Human Services

Cite as 2016 Ark. App. 428

ARKANSAS COURT OF APPEALS

DIVISION III
No. CV-16-395

Opinion Delivered: SEPTEMBER 21, 2016

HARVEY ANDERSON APPEAL FROM THE CRAIGHEAD
APPELLANT COUNTY CIRCUIT COURT,
WESTERN DISTRICT
V. [NO. 16JV-14-29]

HONORABLE MELISSA BRISTOW
ARKANSAS DEPARTMENT OF RICHARDSON, JUDGE
HUMAN SERVICES AND MINOR
CHILD
APPELLEES AFFIRMED

KENNETH S. HIXSON, Judge

Appellant Harvey Anderson appeals from the termination of his parental rights to his

son, M.A., who was born on January 16, 2014. 1 On appeal, Mr. Anderson argues that

because he has a disability within the purview of the Americans with Disabilities Act (ADA),

the case plan should have been modified to accommodate his disability pursuant to Arkansas

Code Annotated section 9-27-341(b)(3)(B)(vii)(b) (Repl. 2015). Mr. Anderson contends

that appellee Arkansas Department of Human Services’ (DHS’s) failure to make such

modifications resulted in premature termination of his parental rights, and that the order

terminating his parental rights should be reversed. We affirm.

1
The child’s mother, Marsha Davis, also had her parental rights terminated.
However, Ms. Davis is not a party to this appeal.
Cite as 2016 Ark. App. 428

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 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 (Repl.

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 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). We will affirm a trial court’s finding that a disputed fact was

proved by clear and convincing evidence unless that finding 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).

This case began on October 27, 2014, when DHS filed a motion for emergency

custody of M.A. Attached to the petition was an affidavit stating that Marsha Davis had

stabbed Mr. Anderson in the face with a screwdriver, resulting in Ms. Davis’s arrest for

felony domestic battery. 2 The attack occurred in the couple’s home in the presence of the

child. Upon inspection of the home, the family-service worker found a plastic baggie

containing cocaine residue and a crack pipe. Mr. Anderson smelled of alcohol and had very

slurred speech. Based on the information in the affidavit, the trial court entered an ex parte

order for emergency custody on the same day DHS’s petition was filed.

2
Ms. Davis has remained incarcerated since then.
2
Cite as 2016 Ark. App. 428

On December 12, 2014, the trial court entered an adjudication order finding M.A.

to be dependent-neglected based on parental unfitness as to both parents. The goal of the

case was reunification. Among other things, Mr. Anderson was ordered to cooperate with

DHS, remain drug free, submit to random drug screens, complete parenting classes, and

maintain safe and stable housing. DHS was ordered to arrange appropriate visitation.

In a review order entered on April 14, 2015, the trial court found that Mr. Anderson

had complied with some of the case plan, but had not visited the child on a regular basis,

had tested positive for cocaine, and had not maintained safe and stable housing. In the

review order, the trial court directed Mr. Anderson to complete long-term inpatient drug

rehabilitation, and ordered that Mr. Anderson be drug-free before being allowed additional

visits with the juvenile.

On October 22, 2015, the trial court entered a permanency-planning order changing

the goal of the case to termination of parental rights and adoption. The trial court found

that Mr. Anderson had failed to complete drug rehabilitation as ordered and had tested

positive for cocaine on multiple occasions. In the permanency-planning order, the trial

court appointed counsel to represent Mr. Anderson.

DHS filed a petition to terminate Mr. Anderson’s parental rights on November 17,

2015. After a hearing, the trial court entered an order terminating Mr. Anderson’s parental

rights on February 12, 2016.

In the termination order, the trial court found by clear and convincing evidence that

termination of Mr. Anderson’s parental rights was in M.A.’s best interest. The trial court

also found clear and convincing evidence of three statutory grounds under Arkansas Code

3
Cite as 2016 Ark. App. 428

Annotated section 9-27-341(b)(3)(B) (Repl. 2015). Pursuant to subsection (ii)(a), the trial

court found that the juvenile had lived outside the home of the parent for twelve months

and that the parent had willfully failed to maintain meaningful contact with the juvenile.

The trial court also found, under subsection (iv), that Mr. Anderson had abandoned the

juvenile. Finally, pursuant to subsection (vii)(a), the trial court found that other factors or

issues arose subsequent to the filing of the original petition for dependency-neglect that

demonstrated that placement of the juvenile in the custody of the parent was contrary to

the juvenile’s health, safety, or welfare and that, despite the offer of appropriate family

services, the parent had 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.

Ashley Middleton, a family-service worker assigned to this case, testified that

although Mr. Anderson had entered a long-term drug-rehabilitation program, he left the

program long before completion. Ms. Middleton further stated that Mr. Anderson had

tested positive for cocaine on numerous occasions. Ms. Middleton testified that over the

course of this case, Mr. Anderson had “hit and miss” visits with the child and had not visited

the child at all since April 2015. The only time Mr. Anderson saw M.A. after April 2015

was when he met briefly with the child when they were both in attendance at the October

2015 permanency-planning hearing. Ms. Middleton indicated that, on her last visit to

Mr. Anderson’s home, the home was inappropriate for a child and that there were multiple

people living there and numerous others coming and going. Ms. Middleton stated that

M.A. could not be safely returned to Mr. Anderson and that M.A. was adoptable. She

4
Cite as 2016 Ark. App. 428

recommended termination of Mr. Anderson’s parental rights based on the best interest of

the child.

Mr. Anderson testified that he has a learning disability and has difficultly reading and

writing. 3 He stated that he receives social security disability benefits. Mr. Anderson stated

that he requested an attorney from DHS, but was not provided one until the day of the

permanency-planning hearing. Mr. Anderson admitted at the hearing that if he were drug

tested he would probably test positive for marijuana.

At the termination hearing, Mr. Anderson’s counsel asserted that Mr. Anderson had

“some learning disability” and a limited ability to read and write, which put him at a

disadvantage. Mr. Anderson’s counsel argued that DHS should have recognized that

disadvantage and offered Mr. Anderson appropriate services, which he believed to be the

appointment of an attorney at the beginning of the case rather than waiting until the

termination hearing. Mr. Anderson’s counsel argued that, because there was no offer of

appropriate family services, DHS had failed to meet its burden of proof with regard to the

“other factors” ground for termination. The trial court disagreed with Mr. Anderson’s

argument, stating:

Mr. Anderson’s reference to a learning disability does not implicate the reasonable
accommodations that the Department is tasked with making in the termination
context, given that there has been no documentation of how certain
accommodations on the Department’s part would have in any way caused a different
result for Mr. Anderson. His noncompliance with this case plan has been willful.
He has refused to participate in drug treatment. He has refused to maintain his
sobriety, and he has refused to visit with his child. The court has heard no evidence
3
In Ms. Middleton’s testimony, she stated that Mr. Anderson never told her he could
not read or write, and that he signed a case plan indicating that he could read and understand
English. She did, however, acknowledge that Mr. Anderson had mentioned that he has a
learning disability.
5
Cite as 2016 Ark. App. 428

to indicate that [a] learning disability could have been handled in a different way,
shape, or form that would have changed the result in terms of his behavior.

The trial court further noted that DHS does not have the ability to provide legal services to

the parent, and that nothing prevented Mr. Anderson from obtaining counsel prior to the

termination hearing.

In this appeal, Mr. Anderson argues that his parental rights were terminated

prematurely because he has a disability within the purview of the ADA, and that DHS

should have modified the case plan to accommodate his disability pursuant to Arkansas Code

Annotated section 9-27-341(b)(3)(B)(vii)(b). Subsection (vii) of the above statute provides,

in its entirety, that a trial court may terminate parental rights if it finds by clear and

convincing evidence:

(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 of 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.
(b) The department shall make reasonable accommodations in accordance with the Americans
with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq., to parents with disabilities in
order to allow them meaningful access to reunification and family preservation services.
(c) For purposes of this subdivision (b)(3)(B)(vii), the ability or incapacity to
remedy or rehabilitate includes, but is not limited to, mental illness, emotional illness,
or mental deficiencies[.]

(emphasis added). In the Americans with Disabilities Act, “disability” is defined at 42 U.S.C.

§ 12102(1) (2009) as:

(A) a physical or mental impairment that substantially limits one or more major life
activities of such individual;
(B) a record of such an impairment; or
(C) being regarded as having such an impairment [.]

6
Cite as 2016 Ark. App. 428

Mr. Anderson asserts that he satisfies the above definition because he has a learning disability

that substantially limits his major life activities of reading, writing, and understanding the

English language. He further posits that his caseworker was aware of his disability, but failed

to make reasonable accommodations as required by statute, including the possibility of

appointing an attorney at an earlier stage in the proceedings to help assist him by explaining

to him the case plan and language contained in the trial court’s orders. He contends that,

because DHS failed to make reasonable accommodations for his disability, the order

terminating his parental rights should be reversed.

We conclude that the argument being raised on appeal was not sufficiently raised and

developed before the trial court. In Mr. Anderson’s answer to the termination petition, he

made no claim of any disability. In his testimony, Mr. Anderson did not identify what type

of disability he has, and stated only that he does not read and write well, despite his signature

on a case plan representing that he could read and understand English. 4 There was also no

evidence that Mr. Anderson had a “record” of any impairment covered by the ADA or that

he was “regarded” as having such an impairment. Mr. Anderson’s counsel stated only that

Mr. Anderson had some unidentified learning disability related to his alleged reading

deficiency and that DHS should have recognized his disadvantage and offered appropriate

services (as opposed to reasonable accommodations). Mr. Anderson’s counsel never

specifically claimed that Mr. Anderson had a disability within the purview of the ADA, nor

was the ADA even mentioned at the hearing. The statute Mr. Anderson now relies on,

Ark. Code Ann. § 9-27-341(b)(3)(B)(vii)(b), was not brought to the trial court’s attention.

4
The trial court specifically found that Mr. Anderson’s testimony was not credible.
7
Cite as 2016 Ark. App. 428

Mr. Anderson’s counsel failed to identify what services Mr. Anderson needed, other than

to be appointed counsel at an earlier date, but the appointment of counsel is not a service

within the capacity of DHS to provide. 5 An argument must be raised and developed before

the trial court to be preserved for review. Harrison v. Phillips, 2012 Ark. App. 474, 422

S.W.3d 188. Because the argument Mr. Anderson now raises on appeal was not sufficiently

presented and developed to the trial court below, we hold that it has not been preserved for

review.

We further conclude that, even if appellant’s argument had been preserved for

review, it could provide no grounds for reversal. The requirement that DHS make

reasonable accommodations for a disability is not an overarching mandate applicable to all

grounds for termination under Ark. Code Ann. § 9-27-341(b)(3)(B), as contended by the

appellant, but is instead one of the elements contained only in the “other factors” ground

for termination codified at Arkansas Code Annotated section 9-27-341(b)(3)(B)(vii). In this

case, in addition to the “other factors” ground, the trial court found two additional grounds

for termination under subsections (ii)(a) (juvenile has lived outside the home for twelve

months and parent willfully failed to maintain meaningful contact) and (iv) (parent has

abandoned the juvenile). The record showed that Mr. Anderson visited M.A. only

sporadically after M.A.’s removal and failed to visit the child at all (save one happenstance

meeting at the permanency-planning hearing) during the ten months preceding the

5
Pursuant to Ark. Code Ann. § 9-27-341(h)(1)(C), the trial court informed Mr.
Anderson in the ex parte emergency-custody order that he had the right to counsel. The
record does not show that Mr. Anderson asked the trial court to appoint him counsel at any
time prior to the permanency-planning hearing, despite his attendance at numerous
proceedings before the court.
8
Cite as 2016 Ark. App. 428

termination hearing. Only one ground is necessary to terminate parental rights. Lively v.

Ark. Dep’t of Human Servs., 2015 Ark. App. 131, 456 S.W.3d 383. When a parent does not

challenge all of the trial court’s findings as to statutory grounds for termination, an

unchallenged ground is sufficient to affirm the termination order. Id. Mr. Anderson’s only

point on appeal challenges DHS’s failure to provide ADA accommodations, and he fails to

separately challenge the trial court’s findings as to the other two statutory grounds, either of

which supports the termination of his parental rights.

Affirmed.

VAUGHT and BROWN, JJ., agree.

Tina Bowers Lee, Ark. Pub. Defender Comm’n, for appellant.

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

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

9