Vega v. Arkansas Department of Human Services

Cite as 2017 Ark. App. 106

ARKANSAS COURT OF APPEALS
DIVISION II
No. CV-16-1007
Opinion Delivered February 22, 2017

CHRISTY VEGA APPEAL FROM THE WASHINGTON
COUNTY CIRCUIT COURT
APPELLANT [NO. 72JV-15-480]
V.
HONORABLE STACEY ZIMMERMAN,
ARKANSAS DEPARTMENT OF JUDGE
HUMAN SERVICES AND MINOR
CHILDREN AFFIRMED

APPELLEES

DAVID M. GLOVER, Judge
Christy Vega appeals from the termination of her parental rights to five of her

children. She challenges the sufficiency of the evidence supporting the trial court’s

conclusion that termination was in the children’s best interest. She does not challenge the

evidence supporting the statutory grounds for termination. We affirm.

Christy has a total of nine children. Her three oldest children (J.F., D.F., and T.F.)

are in their father’s custody and have nothing to do with this appeal. The five children who

are involved in this case are P.T., K.T.1, K.T.2, R.T.1, and R.T.2. The remaining child,

A.T., was born during the pendency of this case and remains with Christy.

The Arkansas Department of Human Services involvement with this family began in

March 2015 based on a true finding of medical neglect. A protection plan was subsequently

created due to P.T.’s allegation of sexual abuse by her father, Markus Trantham. The

children were to have no contact with Markus; Christy’s mother, Dorothy Vega, was
Cite as 2017 Ark. App. 106

enlisted to monitor the protection plan. On June 4, 2015, the five children were placed in

an emergency hold because Dorothy notified DHS she could no longer monitor the

protection plan. There were also allegations these five children had contact with Markus

after the protection plan had been implemented.

On August 5, 2015, the five children were adjudicated dependent-neglected based

on findings of neglect, parental unfitness, housing instability, and exposure to domestic

violence in the home. Christy’s compliance with most of the plan was noted in a December

10, 2015 review order, and plans were set forth for unsupervised weekend visitation, to be

followed by a trial home placement to begin on January 29, 2016. On January 12 and 15,

2016, however, DHS sought, and was subsequently granted, suspension of visitation until

an emergency hearing could be held because Christy and her mother had an altercation with

the children present, there were reports of skin rashes and head lice following visits, and in

addition, there were allegations that P.T. had begun to exhibit concerning sexual behaviors

after visits. (Markus was eventually arrested for rape on March 23, 2016.) The goal of the

case was eventually changed to adoption following a May 13, 2016 permanency-planning

hearing in which the trial court concluded that neither parent had made significant progress

toward reunification and that they were not in full compliance with the case plan or the

court’s orders. The trial court further noted that Christy had failed to keep her children safe

from harm and had not demonstrated she could protect them.

On June 13, 2016, DHS filed a petition to terminate Christy and Markus’s parental

rights to the five children involved in this appeal. The termination hearing was held on

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August 17, 2016, and the parental rights of both parents were terminated by order entered

August 31, 2016. Only Christy’s parental rights are involved in this appeal.

We review termination-of-parental-rights cases de novo. Shawkey v. Arkansas Dep’t

of Human Servs., 2017 Ark. App. 2, ____ S.W.3d ____. At least one statutory ground must

exist, in addition to a finding that it is in the children’s best interest to terminate parental

rights. Id. An order terminating parental rights must be based on clear and convincing

evidence. Id.; Ark. Code Ann. § 9-27-341 (Repl. 2015). On appeal, we examine whether

the trial court’s finding that a disputed fact was proved by clear and convincing evidence is

clearly erroneous. Id. A finding is clearly erroneous when, although there is evidence to

support the finding, after reviewing all of the evidence, we are left with a definite and firm

conviction that a mistake has been made. Campbell v. Arkansas Dep’t of Human Servs., 2017

Ark. App. 82. Credibility determinations are left to the fact-finder. Shawkey, supra. The

intent behind the termination-of-parental-rights statute is to provide permanency in a child’s

life when it is not possible to return the child to the family home because it is contrary to

the child’s health, safety, or welfare, and a return to the family home cannot be accomplished

in a reasonable period of time as viewed from the child’s perspective. Id.

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. Id. Adoptability is a factor that must be considered

by the trial court, but it is not an essential element. Id. Similarly, the trial court must consider

the potential harm of returning a child to a parent, but it does not have to identify a specific

potential harm or have it proved by clear and convincing evidence. Id. The trial court

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conducts its potential-harm analysis in broad terms. Id. It is the overall “best-interest” finding

that must be supported by clear and convincing evidence. Id.

Potential Harm. The major thrust of Christy’s argument under this point is that

the trial court’s finding of potential harm is undercut by the fact that DHS did not remove

the infant, A.T., from the home. She cites no legal authority for her argument, which is also

not persuasive. Eight children were removed from the home. The three oldest children, as

previously mentioned, were placed with their father and are not part of this appeal. The five

children involved in this appeal were removed from the home, and termination proceedings

were eventually pursued. The ninth child was born after the case was underway. Major

concerns for the trial court included testimony that P.T. made allegations of sexual abuse by

Markus, that Christy and her mother were reluctant to believe the allegations, and that the

domestic violence and sexual abuse in the home resulted in the post-traumatic-stress disorder

exhibited by P.T. The trial court specifically found “that there [was] ongoing, deep-seated

familial chaos in this case and that to return any of the children to the custody of a parent

would subject the children to undue, serious risk of harm.” We are not left with a definite

and firm conviction that the trial court was mistaken in finding there was a potential for

harm if the children were returned.

Adoptability. Christy’s basic argument regarding adoptability focuses only on P.T.,

contending there was no evidence to establish that P.T. was adoptable; rather, the testimony

demonstrated how hard it would be to find adoptive parents for P.T. We disagree.

As with the potential-harm factor, the likelihood of adoption is a factor that must be

considered by the trial court, but it does not have to be established by clear and convincing

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evidence. A caseworker’s testimony is sufficient to support an adoptability finding. Barnes v.

Arkansas Dep’t of Human Servs., 2016 Ark. App. 618, ___ S.W.3d ___. Here, the family-

service worker, Yosida Phaypanya, specifically testified that P.T. is adoptable. Yosida

explained that, despite P.T.’s issues, she is very sociable with other people, including

children and her therapist, and that P.T. had made progress in therapy that supported her

being adopted. The CASA report and the therapist’s report supported that assessment noting

P.T.’s progress with therapy, that she was not demonstrating sexualized behaviors nor

physical or verbal aggression, that she was working hard during individual and group sessions

to process her thoughts and feelings, and that she was demonstrating sociable tendencies,

enjoying interactions with other children, and exhibiting happiness and a loving nature. We

find no clear error with the trial court’s adoptability finding.

Following our de novo review, we are not left with a definite and firm conviction

that the trial court made a mistake in concluding it was in the children’s best interest to

terminate Christy’s parental rights.

Affirmed.

GRUBER, C.J., and KLAPPENBACH, J., agree.

Tina Bowers Lee, Ark. Pub. Def. Comm’n, 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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