Troglin v. Arkansas Department of Human Services

Cite as 2017 Ark. App. 89

ARKANSAS COURT OF APPEALS
DIVISION III
No. CV-16-888

Opinion Delivered February 15, 2017

KRISTAN TROGLIN APPEAL FROM THE WASHINGTON
APPELLANT COUNTY CIRCUIT COURT
[NO. JV-2015-267-3]
V.

ARKANSAS DEPARTMENT OF HONORABLE STACEY
HUMAN SERVICES AND MINOR ZIMMERMAN, JUDGE
CHILD
APPELLEES
AFFIRMED

BRANDON J. HARRISON, Judge

Kristan Troglin appeals the termination of her parental rights to her son, C.T. 1

Troglin challenges both the best-interest determination and the statutory grounds for

termination. We affirm the termination order.

On 30 March 2015, the Arkansas Department of Human Services (DHS) filed a

petition for emergency custody of four-year-old C.T. The accompanying affidavit

explained that DHS had exercised a seventy-two-hour hold on C.T. on March 25 after

Troglin had been arrested for endangering the welfare of a minor. “Kristan reportedly left

[C.T.] with a friend at West End Apartments and did not return to pick him up. Kristan

had left [C.T.] with Nycole Fargo and a man named Mikah, but he was reportedly shuffled

The rights of C.T.’s father, Justin Troglin, have also been terminated, but Justin is
1

not a party to this appeal.
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Cite as 2017 Ark. App. 89

around to several different apartments and ended up staying with Ronnie Bridges.” The

affidavit noted that Justin Troglin was currently in jail. The affidavit also recited DHS’s

history with the Troglins:

March 16, 2012: True on Kristan and Justin for Inadequate Supervision on
[C.T.].
April 15, 2012–August 15, 2012: Protective services case opened on the
family.
June 2, 2014: True on Justin for Inadequate Supervision on [C.T.].
July 12, 2014–September 12, 2014: Protective services case open on the
family.
February 16, 2015: Pending investigation on Kristen [sic] for inadequate
supervision on [C.T].
March 25, 2015: Pending investigation on Kristen [sic] for inadequate
supervision on [C.T.] due to these most recent allegations.

The Washington County Circuit Court granted the ex parte order for emergency custody,

and on April 1, found probable cause for C.T. to remain in DHS’s custody. The probable-

cause order noted that Troglin was in the Intensive Care Unit but did not indicate why she

was hospitalized.

In June 2015, the court adjudicated C.T. dependent-neglected due to neglect,

parental unfitness, and Troglin’s drug use. Troglin was allowed supervised visitation and

phone visits once a week. She was also ordered to contact the family-service worker once

a week, undergo a psychiatric evaluation, participate in individual counseling, not use illegal

drugs or alcohol, submit to random drug screens, and obtain and maintain stable housing

and employment. The adjudication order noted that Troglin had been hospitalized for

seven weeks “for infections caused by drug use.”

A September review order noted that Troglin had complied with some of the court

orders and case plan, specifically by maintaining contact with DHS, participating in

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visitation, and submitting to drug screens. However, she had not obtained and maintained

stable housing, completed individual counseling, or submitted to a psychiatric evaluation.

The court noted that “[m]om is making good progress, but needs a little more time to show

stability.”

The court held a permanency-planning hearing in February 2016. In the subsequent

order, the court found that Troglin had not complied with most of the court orders and the

case plan.

Mother has not obtained and maintained stable housing and employment.
Mother has new housing, for approximately two months. She has new
employment, for approximately two weeks. She has not completed individual
counseling and has not been consistent in her attendance at counseling
sessions. She has not submitted to a psychiatric evaluation. She has not
submitted to random drug screens as ordered and has not passed all drug
screens to which she has submitted. Mother was positive for
methamphetamine, amphetamines, oxycodone, noroxycodone, and
buprenorphine on February 11, 2016. This test was confirmed by the lab as
being positive. She has not refrained from illegal activity. Mother was arrested
in October of 2015 for Possession of Drug Paraphernalia and again in January
of 2016 for Possession of Drug Paraphernalia. Mother has pending criminal
charges with various upcoming court dates. She has made minimal progress
toward alleviating or mitigating the causes of the juvenile’s removal from the
home and completing court orders and requirements of the case plan. Mother
testified today that she is not in a position to have [C.T.] returned to her
custody.

(Emphasis in original.) The court authorized DHS to file a petition to terminate parental

rights and changed the goal of the case to adoption.

The petition for termination of parental rights, filed in March 2016, alleged the

“failure to remedy” ground, the “subsequent factors” ground, and aggravated circumstances

as statutory bases for termination of Troglin’s parental rights. The court convened the

termination hearing on 11 May 2016; however, the case was continued to allow Troglin to

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obtain new counsel. The court reconvened the hearing on 9 June 2016 and heard the

following testimony.

Andrea Emerson, the current family-service worker assigned to the case,

recommended that Troglin’s parental rights be terminated. Emerson explained that C.T.

was adoptable, that he was doing well in his current foster home, and that his current foster

home was a potential permanent placement. Emerson agreed that Troglin had not fully

complied with the case plan, had not demonstrated stability, and had not demonstrated an

ability to protect and care for C.T. Emerson also noted that Troglin had pending criminal

charges and had not submitted to a drug screen since 29 March 2016. On that date, Troglin

tested positive for “benzos and oxy” but told Emerson that she had a prescription.

According to Emerson, Troglin had last tested positive for methamphetamine on 22

February 2016.

On cross-examination, Emerson agreed that Troglin had been diligent in attending

visits since early May 2016 when Emerson had become the caseworker; that C.T. loved his

mother; and that C.T. and Troglin were bonded. She also explained that Troglin had

missed some visits and that the “inconsistency and unstability” caused C.T. to act out. She

said that C.T. is “struggling with some sensory processing issues” and had recently been

evaluated for occupational therapy.

Sierra Summers, a friend of the family, testified that she had been C.T.’s foster

mom for about a year and had supervised visitation between Troglin and C.T. in her home.

She said it was “very evident” that C.T. and his mother love each other but that Troglin

did not engage with C.T. very much. Summers stated that C.T. would end up playing by

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himself and that she would have to repeatedly tell Troglin to play with him. Summers also

said that Troglin often brought different boyfriends with her to the visitation, which was

confusing for C.T. Summers explained that she eventually stopped allowing visitation in

her home because she “didn’t feel like it was productive for [C.T.].” She also testified that

C.T. was moved from her home to another placement because she “could not handle his

behavior.” She said she received letters from C.T.’s school describing him as “over the top

physical, over the top reactive to confrontation situations, would not respond or listen to

authority or teachers, would not sit still, would not stay in timeout, started lying quite a bit,

and acted out a little bit sexually inappropriately.” Summers explained that she was a single

mother and did not have the resources to care for C.T. and also “create a buffer” for her

own son. She said that she did still see C.T. and that he and her son love each other and

“call each other brothers.”

C.T.’s current foster father, Zane (no last name is in the record), testified that C.T.

had been in his home about a month and was acclimating very well. He said that he and

his wife also have a two-year-old child with a sensory-processing disorder, so they

recognized what C.T. was struggling with and had him placed in occupational therapy.

Zane stated that C.T. loved therapy, had started calling him and his wife mom and dad, and

that he and his wife would definitely want to adopt him if parental rights were terminated.

Troglin testified that she was a good mother and could “fully take care of [C.T.].”

She said that she had a stable home and a full-time job and had “followed everything on the

court order except for the findings that they already have against me.” She also said that

C.T. is her “best friend,” that he was “everything to [her],” and that terminating her parental

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rights would not be in his best interest. She testified that she had a good relationship with

Justin Troglin but that they were getting divorced. She also said that she could pass a drug

screen and had been clean for six months. She agreed that she wanted the court to give her

more time and to implement a trial placement with her.

On cross-examination, she acknowledged that the lab confirmed a positive drug

screen for methamphetamine in February, but she contended that the lab test was wrong.

She also said that she had not submitted to weekly drug screens because she has to work.

She explained that she had been living in her current housing since March 2016 and working

at her current job for three months.

Justin Troglin testified that Kristan was a good mother and that she had never

mistreated C.T. He acknowledged that he could not take C.T. but agreed that Kristan

could keep him safe from harm and provide a suitable and appropriate place for him to live.

Justin thought that terminating Kristan’s parental rights would “completely screw that boy’s

head up.”

Amanda McKay, a behavioral-intervention specialist for foster-care services at Ozark

Guidance Center, testified that C.T. had been her client since December 2015. McKay

explained that C.T. receives individual therapy once a week, family therapy once a month,

and also sees a psychiatrist. She said C.T. had been diagnosed with posttraumatic stress and

struggled with anxiety, impulsivity, and aggression.

At the conclusion of the hearing, the court found that Troglin’s parental rights should

be terminated. The written order, filed in July 2016, found that Troglin had failed to

remedy the conditions that caused removal and that she had manifested an incapacity or

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indifference to remedying the subsequent factors or to rehabilitating her circumstances.

Regarding failure to remedy, the court found that C.T. had been out of Troglin’s custody

for over twelve months and noted its own finding

at the Permanency Planning Hearing on February 19, 2016 that the
Department had made reasonable efforts toward the case plan goal of
reunification but that, despite those efforts, neither parent was in compliance,
neither parent had made significant and measurable progress, and neither
parent had demonstrated parental fitness. The same remains true today.

Regarding subsequent factors, the court found that since the filing of the original petition

in March 2015, Troglin had not been in compliance with the case plan and court orders.

Again, the court noted its findings at the permanency-planning hearing that

Mother had new housing, but only for two (2) months and that Mother had
obtained new employment, but for only two (2) weeks. Mother has failed to
maintain sobriety, testing positive for methamphetamine, amphetamines,
oxycodone, noroxycodone, and buprenorphine on February 11, 2016. This
test was confirmed by the lab. Mother was arrested in October of 2015 for
Possession of Drug Paraphernalia and again in January of 2016 for Possession
of Drug Paraphernalia. Mother’s criminal charges are pending.

(Emphasis in original.) Finally, in discussing C.T.’s best interest, the court found the

following:

[T]he Court finds that [C.T.] is the one paying the price in this case. [C.T.]’s
recent aggression is due to the choices of [his] parents. DHS has been
involved with Mother since 2012. Mother is in partial compliance today, but
the Court finds that even if Mother had done everything ordered of her,
Mother cannot meet [C.T.]’s needs. [C.T.] is a unique child; he has post-
traumatic stress disorder (PTSD) and has special needs. Mother cannot meet
his needs. Mother has not submitted to weekly random drug screens as
ordered. Mother has not completed counseling—despite having been
ordered to do so in May of 2015. Mother did not keep all of her counseling
appointments. Mother tested positive for methamphetamine in February of
2016. Mother has not remedied the conditions which caused removal.
Mother is not a fit parent and continues to make poor choices. Mother’s visits
with [C.T.] have not been nurturing.

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(Emphasis in original.) The court found that C.T. is adoptable and that returning C.T. to

Troglin would place him “back into a situation which is not safe for him.” Troglin has

timely appealed the circuit court’s order.

A circuit court’s order that terminates parental rights must be based on findings

proved by clear and convincing evidence. Ark. Code Ann. § 9-27-341(b)(3) (Repl. 2015);

Dinkins v. Ark. Dep’t of Human Servs., 344 Ark. 207, 40 S.W.3d 286 (2001). Clear and

convincing evidence is proof that will produce in the fact-finder a firm conviction on the

allegation sought to be established. Dinkins, supra. On appeal, we will not reverse the

circuit court’s ruling unless its findings are clearly erroneous. Id. 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. Id. In

determining whether a finding is clearly erroneous, an appellate court gives due deference

to the opportunity of the circuit court to assess the witnesses’ credibility. Id.

The goal of Arkansas Code Annotated section 9-27-341 is to provide permanency

in a minor child’s life in circumstances in which returning the child to the family home is

contrary to the minor’s health, safety, or welfare, and the evidence demonstrates that a return

to the home cannot be accomplished in a reasonable period of time as viewed from the

minor child’s perspective. Id.; Ark. Code Ann. § 9-27-341(a)(3). Parental rights may be

terminated if clear and convincing evidence shows (1) that it is in the child’s best interest

and (2) that statutory grounds have been proved. Hune v. Ark. Dep’t of Human Servs., 2010

Ark. App. 543. One statutory ground is sufficient to support the termination of parental

rights. Geatches v. Ark. Dep’t of Human Servs., 2016 Ark. App. 344, 498 S.W.3d 344.

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Troglin first argues that neither of the statutory grounds for termination that were

found against her were supported by sufficient evidence. She then challenges the circuit

court’s best-interest determination.

I. Failure to Remedy

The “out of custody for twelve months” and “failure to remedy” ground requires

the circuit court to find 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.

Ark. Code Ann. § 9-27-341(b)(3)(B)(i)(a). Troglin asserts that there was insufficient

evidence that she failed to remedy the cause of C.T.’s removal. She argues that the circuit

court cited to her lack of progress at the permanency-planning hearing, but lack of

compliance was not the reason for C.T.’s removal. She contends that he was removed after

she had left him with friends and that she was arrested for endangering the welfare of a

minor; however, there was no evidence that she was actually charged with endangerment,

and there was evidence that she was unable to return to C.T. because she was hospitalized.

Troglin argues that the circuit court’s findings on this ground actually fall within the

“subsequent factors” ground.

We affirm on this point. What Troglin’s argument does not explain is that she was

hospitalized, and therefore unable to care for C.T., due to “infections caused by drug use,”

and one of the bases for adjudication was Troglin’s drug use. And yet, Troglin tested

positive for drugs in February 2016 when C.T. had been in DHS custody for almost a year.

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And though she claimed to be drug free on the date of the termination hearing, the court

was not required to believe her or to conduct a drug test to verify her claim. The circuit

court did not err in finding that Troglin had not remedied the conditions that led to C.T.’s

removal. Because one statutory ground is sufficient to support the termination of parental

rights, Geatches, supra, we need not address Troglin’s argument regarding subsequent factors.

II. Best Interest

Troglin asserts that there was insufficient evidence to support the conclusion that

C.T. faced a substantial risk of harm if returned to her. She argues that Emerson was

relatively new to the case and “had no working knowledge” of the basic facts, so her

“unsupported” opinion that C.T. would not be safe if returned to Troglin does not

constitute evidence on which the circuit court could rely. She also disputes that the record

supports the court’s finding that C.T. has special needs or that Troglin is incapable of

meeting those needs. Finally, she asserts that the circuit court erred in “not considering the

evidence of the loving and deep rooted bond between Kristan and C.T.” She concludes

that it was “unreasonable for the trial court to fail to even consider allowing a little extra

time for Kristan to accomplish everything that was needed for a successful reunification.”

We first note that “substantial risk of harm” is not the correct standard. In

conducting a best-interest analysis, the court must consider the potential harm in returning

the child to the parent. Ark. Code Ann. § 9-27-341(b)(3)(A)(ii). This potential-harm

inquiry is but one of the many factors that a court may consider, and the focus is on the

potential harm to the health and safety of a child that might result from continued contact

with the parent. Tadlock v. Ark. Dep’t of Human Servs., 2009 Ark. App. 841, 372 S.W.3d

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403. The court is not required to find that actual harm would result or to affirmatively

identify a potential harm. Id. Furthermore, the potential-harm analysis should be conducted

in broad terms. Id.

In this case, Troglin’s relatively late compliance with some parts of the case plan, her

noncompliance in other areas (drug screens), and evidence of her continued drug use all

support the court’s finding on this point. We therefore affirm the circuit court’s finding

that C.T. faced potential harm if returned to Troglin’s care.

Affirmed.

HIXSON and BROWN, 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 child.

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