Abram v. Arkansas Department of Human Services

Cite as 2016 Ark. App. 437

ARKANSAS COURT OF APPEALS
DIVISION IV
No. CV-16-470

CATHERINE ABRAM Opinion Delivered: September 28, 2016
APPELLANT
APPEAL FROM THE SEBASTIAN
V. COUNTY CIRCUIT COURT, FORT
SMITH DISTRICT
[NO. 66JV-2011-106]
ARKANSAS DEPARTMENT OF
HUMAN SERVICES and MINOR HONORABLE LEIGH ZUERKER,
CHILDREN JUDGE
APPELLEES
AFFIRMED

RITA W. GRUBER, Judge

Appellant, Catherine Abram, appeals from an order of the Sebastian County Circuit

Court terminating her parental rights to her children A.D., born October 2, 2005, and H.D.,

born August 29, 2008. She presents three points on appeal: (1) the trial court erred in

denying her motion to dismiss the termination proceeding where the case was filed in a

previously closed dependency-neglect proceeding; (2) there was insufficient evidence to

support the grounds for termination; and (3) there was insufficient evidence that termination

was in the children’s best interest. We affirm the circuit court’s order.1

A dependency-neglect action was opened regarding A.D. and H.D. in 2011 and was

closed by an order entered on April 14, 2014, following appellant’s successful reunification

with them. Less than a month after the case had been closed, appellant and her live-in

1
Neither the putative father nor the legal father participated in the case; their rights
were terminated, and neither is involved in this appeal.
Cite as 2016 Ark. App. 437

boyfriend were arrested on drug-related charges. On May 12, 2014, the Arkansas

Department of Human Services (DHS) filed a petition for emergency custody and

dependency-neglect under the same docket number of the case that the court had closed the

month before. The children were subsequently adjudicated dependent-neglected in an order

entered July 23, 2014, based on neglect and parental unfitness. Specifically, the court found

that appellant had been charged with delivery of methamphetamine, possession of

methamphetamine, possession of drug paraphernalia, maintaining the premises for the

purposes of drug sales, and endangering the welfare of the minors. The court found that

appellant had placed the juveniles at substantial risk of serious harm as a result of their

exposure to drug sales and to methamphetamine within reach of the juveniles.

Appellant entered a plea of guilty to the criminal charges and was sentenced to

imprisonment followed by an eight-year suspended sentence. She was released on parole in

March 2015. In a fifteen-month review order entered on November 3, 2015, the court

found that the mother had not complied with the case plan and the orders of the court.

Specifically, the court found that she did not have appropriate housing or sufficient income,

that she had not completed a psychological evaluation or parenting classes, and that she had

failed to visit regularly. The court did find that she had submitted to a drug-and-alcohol

assessment and to drug screens. The court set the goal of the case as termination of parental

rights and adoption.

After a hearing on January 8, 2016, the court entered an order on February 29, 2016,

terminating appellant’s parental rights. The trial court found three grounds for termination

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by clear and convincing evidence: (1) that the children had been out of the home for more

than twelve months and that, despite a meaningful effort by DHS to rehabilitate the parents,

the conditions causing removal of the children had not been remedied; (2) that other factors

and issues had arisen to demonstrate that returning the children to appellant would be

contrary to the children’s health, safety, and welfare; and (3) that the children had been

subjected to aggravated circumstances, specifically, that there was little likelihood that services

to the family would result in successful reunification. The court further found by clear and

convincing evidence that termination of appellant’s parental rights was in the children’s best

interest, specifically considering adoptability and potential harm.

I.

For her first point on appeal, appellant contends that the trial court erred in denying

her motion to dismiss the termination proceeding because DHS erroneously filed the case

under the same docket number as a closed dependency-neglect action. At the close of the

testimony in the termination hearing, appellant’s attorney made the following oral motion:

Just for the preservation of the record primarily it seems to me that there is some issue
with reopening a new case under an old case number, so I would ask that this
termination hearing be dismissed because it has been filed under an old case number.
I just want to make sure that that request is in the record.

The court denied the motion because it was “reopened prior to my taking the bench”2 and

because the court did not believe that it was divested of jurisdiction to hear the petition.

To support her argument, appellant cites our supreme court’s opinion in Young v.

2
The circuit judge changed sometime after the adjudication order had been entered.

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Arkansas Department of Human Services, 2012 Ark. 334. In Young, an earlier dependency-

neglect action had been closed in 2009 when the juvenile court placed the child in the

permanent custody of the Sextons with visitation to the mother. In 2011, the Sextons filed

an emergency ex parte petition to modify the mother’s visitation, using the same case name

and number from the closed dependency-neglect action. The juvenile court reopened the

case and decided the custody issue in a “permanency-planning” format although it was not

a dependency-neglect matter. Although the issue does not appear to have been argued by the

parties in that case, the supreme court held that the circuit court erred in applying the

Juvenile Code because the dependency-neglect case had been resolved, the action had been

terminated, and the case could not be reopened. Id. at 2. Noting, however, that the juvenile

division is a circuit court—and therefore a trial court of general jurisdiction—with

jurisdiction to hear a general child-custody case, the Young court decided the merits of the

appeal. Id. at 3–4.

Appellant’s reliance on Young is misplaced. The facts in this case are very different

from the facts before the court in Young. Here, the dependency-neglect action had been

closed for less than a month when the new petition for emergency custody and dependency

neglect was filed, not two years later as in Young. Second, the new petition in this case was

not a general-custody matter but a dependency-neglect petition, exactly the type of case

heard in juvenile court. Appellant admits that the circuit court in this case had jurisdiction

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over the matter.3 Appellant argues, relying on Young, that the court improperly exercised its

jurisdiction and thus that the trial court erred in not dismissing the case.

We recognize that the supreme court held in Young that the circuit court erred in

reopening the two-year-closed dependency-neglect case to entertain a petition for

modification of visitation. We do not interpret the court’s opinion, however, as forbidding

the reopening of a closed dependency-neglect case in all circumstances, nor do we discern

that the court offered a remedy for any alleged error in doing so. Indeed, in Young, where

the court specifically held that the circuit court erred in reopening the case, the court then

decided the merits of the appeal.

Accordingly, in this dependency-neglect case—decided on its own merits, occurring

less than a month after the initial dependency-neglect case had been closed, and over which

the juvenile court clearly had subject-matter jurisdiction—we hold that the court did not err

in denying appellant’s motion to dismiss. Moreover, appellant did not object to the case

having been reopened until the end of the termination hearing, almost a year and a half after

the alleged error had occurred. Any error argued on appeal must have first been directed to

the circuit court’s attention in some appropriate manner to give the court an opportunity to

address the issue. Quarles v. Courtyard Gardens Health & Rehab., LLC, 2016 Ark. 112, at

10–11, 488 S.W.3d 513, 521 (holding error raised in posttrial motions untimely); see also

3
“The circuit court shall have exclusive original jurisdiction of and shall be the sole
court for” a number of proceedings under the Juvenile Code, including dependency-neglect
and termination-of-parental-rights proceedings. Ark. Code Ann. § 9-27-306(a)(1)(B) & (E)
(Repl. 2015).

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Smithee v. Ark. Dep’t of Human Servs., 2015 Ark. App. 506, at 5, 471 S.W.3d 227, 230

(holding that, for a circuit court to have committed reversible error, timely and accurate

objections must have been made so that the circuit court would have the opportunity to

correct the error). A party cannot wait until the outcome of a case to bring an error to the

circuit court’s attention, Smithee, supra, particularly an error that could so easily have been

remedied by the clerk’s office opening a new case file.

II.

We now turn to the merits of appellant’s arguments challenging the circuit court’s

findings supporting termination. We review termination-of-parental-rights cases de novo.

Dinkins v. Ark. Dep’t of Human Servs., 344 Ark. 207, 213, 40 S.W.3d 286, 291 (2001). 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. In making a “best interest” determination, the trial court is required

to consider two factors: (1) the likelihood that the child will be adopted and (2) the potential

of harm to the child if custody is returned to a parent. Ford v. Ark. Dep’t of Human Servs., 2014

Ark. App. 226, at 2, 434 S.W.3d 378, 380. Credibility determinations are left to the

fact-finder, here the trial court. Schaible v. Ark. Dep’t of Human Servs., 2014 Ark. App. 541,

at 8, 444 S.W.3d 366, 371.

For her second point on appeal, appellant contends that the evidence was insufficient

to support the court’s findings on all three grounds for termination. With regard to the first

ground, appellant does not contest that the children were each adjudicated dependent-

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neglected and that they were out of her custody for 12 months—22 months, actually. Rather,

she asserts that she did remedy the conditions that had caused their removal: specifically, the

drug charges. She contends that she entered a negotiated plea, served the required time on

the charges, and was released on parole. She also completed the required drug-and-alcohol

assessment and tested negative on all drug screens. Thus, she argues, there was not sufficient

evidence to demonstrate that she had failed to remedy the conditions that caused the removal

of her children and the court’s finding was clearly erroneous.

Although appellant’s possession of drugs was one of the reasons for the children’s

removal, the children were removed from appellant’s custody based on neglect and parental

unfitness. The court found that appellant had been charged with delivery of

methamphetamine, possession of methamphetamine, possession of drug paraphernalia,

maintaining the premises for the purposes of drug sales, and endangering the welfare of the

minors. The court found that appellant had placed the juveniles at substantial risk of serious

harm as a result of their exposure to drug sales and to methamphetamine within reach of the

juveniles. The problem was bigger than appellant’s personal drug use. Therefore, the

resolution of her criminal charges and clean drug screens was not, to the circuit court,

sufficient to remedy the neglect and parental unfitness that caused the children’s removal

from her custody. Appellant had failed to comply with the case plan by failing to complete

a psychological evaluation, failing to complete parenting classes, failing to obtain stable

housing or stable income, and failing to attend regular visits with the children. At the

termination hearing, the testimony established that she regularly cancelled or failed to show

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up for visitation with her children. We hold that the court’s finding on this ground is not

clearly erroneous. Further, because only one statutory ground is necessary to support

termination, it is not necessary to address appellant’s arguments regarding the other grounds.

Sarut v. Ark. Dep’t of Human Servs., 2015 Ark. App. 76, at 9, 455 S.W.3d 341, 347.

For her third point on appeal, appellant argues that the evidence was insufficient to

demonstrate that termination was in the best interest of her children. Specifically, she

contends that there was insufficient evidence for the court to consider adoptability because

the only testimony regarding this issue was from the assigned DHS caseworker, who had

never met the children, and that there was insufficient evidence to support the trial court’s

conclusion that the children faced a substantial risk of harm if returned to her.

We turn first to appellant’s argument that there was insufficient evidence of

adoptability to support the circuit court’s finding of best interest. The circuit court is not

required to find by clear and convincing evidence that the children are adoptable but merely

must consider the likelihood of adoption if parental rights are terminated. Miller v. Ark. Dep’t

of Human Servs., 2016 Ark. App. 239, at 7, 492 S.W.3d 113, 117. While this court has not

required that abundant evidence of adoptability be introduced—generally a caseworker’s

testimony that a child is adoptable is sufficient to support an adoptability finding—we have

previously held that “[c]onsideration requires evidence . . . or at least some finding by the

trial court that other aspects of the best-interest analysis so favor termination that the absence

of proof on adoptability makes no legal difference.” Haynes v. Ark. Dep’t of Human Servs.,

2010 Ark. App. 28, at 4. We have affirmed many cases in which the only evidence of

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adoptability was the testimony of the caseworker. Caldwell v. Ark. Dep’t of Human Servs.,

2016 Ark. App. 144, 484 S.W.3d 719; Adams v. Ark. Dep’t of Human Servs., 2016 Ark. App.

131, 485 S.W.3d 275; Madison v. Ark. Dep’t of Human Servs., 2013 Ark. App. 368, 428

S.W.3d 555; Reed v. Ark. Dep’t of Human Servs., 2010 Ark. App. 416, 375 S.W.3d 709

(holding that testimony of caseworker’s supervisor, who had little personal contact with the

children, was sufficient).

Here, the caseworker testified that the children were adoptable. The CASA report

specifically recommended adoption, and, while not evidence, the attorney ad litem stated at

the termination hearing that the children were “clearly adoptable.” The court made the

following finding in its order:

As to the juvenile’s adoptability, this Court finds that the juveniles are adoptable based
on the testimony of Amy Taber and the history of this case, including the fact that the
juveniles are healthy and have no conditions that would bar adoption.

The court is not required to find that the children are adoptable but must merely “consider

the likelihood that the child will be adopted if the termination petition is granted.” Ark.

Code Ann. § 9-27-341(b)(3)(A). We hold that the court did that here.

We turn now to appellant’s argument regarding potential harm. Potential harm to the

child is a factor to be considered, but a specific potential harm does not have to be identified

or proved by clear and convincing evidence. Pine v. Ark. Dep’t of Human Servs., 2010 Ark.

App. 781, at 11, 379 S.W.3d 703, 709. The potential-harm analysis is to be conducted in

broad terms. Id. It is the “best interest” finding that must be supported by clear and

convincing evidence. Wilson v. Ark. Dep’t of Human Servs., 2015 Ark. App. 666, at 13, 476

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S.W.3d 816, 824. The court found that appellant did not have stable housing or a stable job.

A stable home is one of a child’s most basic needs, and the failure to secure safe and

appropriate housing of one’s own is contrary to the child’s well-being and best interest. Welch

v. Ark. Dep’t of Human Servs., 2010 Ark. App. 798, at 9, 378 S.W.3d 290, 295; see also

Brumley v. Ark. Dep’t of Human Servs., 2015 Ark. App. 90, 455 S.W.3d 347 (holding that

continued uncertainty is itself potentially harmful to children). Moreover, appellant failed to

comply with the case plan and did not even demonstrate the ability to visit her children

regularly. Even full compliance with the case plan is not determinative; the issue is whether

the parent has become a stable, safe parent able to care for his or her child. Ford, 2014 Ark.

App. 226, at 3, 434 S.W.3d at 381. We hold that the court’s finding on best interest was not

clearly erroneous.

Affirmed.

WHITEAKER and HOOFMAN, JJ., agree.

Tina Bowers Lee, Arkansas Public Defender Commission, for appellant.

Mary Goff, Office of Chief Counsel, for appellee.

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

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