Romero v. Arkansas Department of Human Services

Cite as 2017 Ark. App. 238

ARKANSAS COURT OF APPEALS
DIVISION III
No. CV-16-1112

Opinion Delivered APRIL 19, 2017
OSCAR ROMERO
APPELLANT APPEAL FROM THE YELL COUNTY
CIRCUIT COURT, NORTHERN
V. DISTRICT
[NO. 75NJV-15-23]
ARKANSAS DEPARTMENT OF
HUMAN SERVICES AND MINOR HONORABLE TERRY SULLIVAN,
CHILD JUDGE
APPELLEES
AFFIRMED

N. MARK KLAPPENBACH, Judge

This is an appeal from the order entered on October 4, 2016, by the Yell County

Circuit Court terminating the parental rights of appellant Oscar Romero to his son VR, who

was born in April 2015. Appellant does not contest the sufficiency of the evidence regarding

statutory grounds to support terminating his parental rights. Appellant’s argument on appeal

is that the trial court clearly erred in concluding that termination of his parental rights was in

VR’s best interest. We affirm.

The termination of parental rights involves a two-step process in which the trial court

must find that the parent is unfit and that termination is in the child’s best interest. Murray v.

Ark. Dep’t of Human Servs., 2013 Ark. App. 431, at 6, 429 S.W.3d 288, 292. An order

terminating parental rights must be based on clear and convincing evidence, i.e., proof that

will produce in the fact finder a firm conviction as to the verity of the allegation sought to be

established. Hamman v. Ark. Dep’t of Human Servs., 2014 Ark. App. 295, 435 S.W.3d 495. On
Cite as 2017 Ark. App. 238

appeal, the issue before us is whether the trial court’s finding that the fact was proved by clear

and convincing evidence is clearly erroneous. Id. A finding is clearly erroneous when the

appellate court is, on the entire evidence, left with a definite and firm conviction that a

mistake has been made. Id. In deciding whether a trial court’s finding is clearly erroneous,

we give great deference to its superior opportunity to observe the parties and to judge the

credibility of witnesses. Id.

In determining the best interest of the juvenile, a trial court must take into

consideration (1) the likelihood that the juvenile will be adopted if the termination petition

is granted; and (2) the potential harm, specifically addressing the effect on the health and safety

of the child, caused by returning the child to the custody of the parent. Myers v. Ark. Dep’t

of Human Servs., 2011 Ark. 182, 380 S.W.3d 906. Adoptability is but one factor that is

considered when making a best-interest determination. Hammam, supra. In considering

potential harm caused by returning the child to the parent, the trial court is not required to

find that actual harm would result or affirmatively identify a potential harm. Welch v. Ark.

Dep’t of Human Servs., 2010 Ark. App. 798, 378 S.W.3d 290. Potential harm must be viewed

in a forward-looking manner and in broad terms, including the harm the child suffers from

the lack of stability of a permanent home. Collins v. Ark. Dep’t of Human Servs., 2013 Ark.

App. 90. In considering the best interest of the child, there is no requirement that every factor

considered be established by clear and convincing evidence; rather, after consideration of all

factors, the evidence must be clear and convincing that termination is in the best interest of

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the child. Id.

In this case, appellant had been incarcerated for the entirety of VR’s life at the time of

termination. Appellant contends on appeal that he needed a minimal amount of additional

time in which to be released from prison and in which to demonstrate his stability as a parent.

Appellant adds that his mother was a fit and willing relative available to care for VR until he

could take custody of his son. Thus, he argues that the trial court’s decision on “best interest”

was not supported by clear and convincing evidence and must be reversed.1 The Department

of Human Services (DHS) and the child’s attorney ad litem argue that the trial court did not

clearly err.

In order to assess appellant’s arguments, we examine the chronology of events and the

evidence presented to the trial court. DHS removed VR from his mother’s custody shortly

after his birth on April 29, 2015, due to the mother’s use of methamphetamine and THC

while she was pregnant. Appellant, a young man in his early twenties, was incarcerated at that

time and had a multiple-felony record. In May 2015, the trial court found there to be

probable cause to support removal of VR from his mother’s custody; she stipulated to the

existence of probable cause.

In July 2015, VR was adjudicated to be a dependent-neglected child; the mother

1
Appellant does not contest the trial court’s consideration of the likelihood that VR
would be adopted; consequently, we do not address that factor. Appellant’s argument relates
to the trial court’s consideration of potential harm in returning VR to appellant’s custody and
the overall finding of VR’s best interest.

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stipulated to this finding. A case plan was developed for the mother, focused primarily on

addressing her drug-addiction issues, but she failed to remedy those issues and was convicted

of criminal offenses while this DHS case was pending.2 In the July 2015 adjudication order,

it was noted that appellant testified that he had a tentative prison discharge date of November

2015.

The matter was reviewed in October 2015, at which time appellant was deemed

noncompliant with the case plan due to his incarceration and unavailability for services.

Another review hearing was conducted in January 2016, followed by a permanency-planning

hearing in April 2016, at which time appellant was appointed an attorney. At that hearing,

appellant was noted to have been imprisoned for the entirety of VR’s life and to be presently

ineligible for parole due to disciplinary violations. Appellant testified at that hearing to his

belief that the earliest possibility for his parole would be in August 2016. Appellant said that

he was taking as many classes in prison as he could in order to try to obtain parole. In the

permanency-planning order, DHS was given permission to perform a home study on

appellant’s mother, and the goal of the case was changed to termination of parental rights and

adoption.

In July 2016, DHS filed a petition to terminate parental rights in which DHS alleged

that appellant had a substantial criminal history including theft, breaking or entering, robbery,

2
Her parental rights were terminated in these proceedings, but she is not a party to this
appeal.

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and burglary; that VR was approximately fifteen months old and appellant had been

incarcerated all of VR’s life; that appellant’s total current sentence would not be completed

until VR was seven years old; and that this constituted a substantial period of VR’s life. DHS

further alleged that, with appellant’s repetitive criminal history, there was little likelihood that

additional time or services would result in successful reunification. DHS also alleged that

termination of parental rights was in this child’s best interest.

The termination hearing was conducted in August 2016. Appellant, then age twenty-

two, testified that he had never seen his son in person due to his incarceration. He testified

that he had once been denied parole but that he had taken parenting and anger-management

classes while in prison. Appellant stated that it would not be “too long” after he was paroled

that he could become ready to care for his son. He thought he could be paroled in September

2016 and said that he had two potential jobs (as a painter and as a construction worker) lined

up as well as a place to live with his godmother. Appellant wanted his mother to care for VR

until he was ready to parent independently.

Appellant’s mother is not a legal United States resident, although she has lived in this

country for over twenty years. A CASA (Court Appointed Special Advocates) report was

entered into evidence; a home study on appellant’s mother was attached. The CASA

recommendation was that termination of parental rights take place and that VR be cleared for

adoption.

The DHS caseworker testified that VR was presently in a placement that would

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consider adopting him; that VR had no impediments to being adopted; and that she was

confident that an adoptive home could be readily found for this child. The caseworker

expressed concern that appellant had already been denied parole once, he had prison

infractions in recent months, and he still had “several years hanging over his head.” The

caseworker was also concerned that appellant would not change and would instead continue

with his criminal behaviors. She was asked about the potential placement of VR with his

paternal grandmother. The caseworker testified that the grandmother and her long-term live-

in boyfriend were “illegal” and that both of them remained married to other people. The

caseworker stated that the grandmother’s situation had inherent instability as opposed to

permanency provided by adoption. The caseworker noted, though, that there was nothing

prohibiting appellant’s mother from being considered as an adoptive placement. The positions

of the attorney ad litem, CASA, and DHS were uniform that VR’s best interest was served

by terminating parental rights.

At the conclusion of the hearing, the trial judge announced his decision to terminate

parental rights in this “sad case.” The trial judge recounted that appellant had never seen his

son due to his incarceration; that appellant had a repetitive criminal history with uncertainty

regarding his potential upcoming parole; that appellant completed some classes and appeared

to love his son; but that neither parent could have VR placed with them. The trial judge

stated that appellant’s mother seemed “to be a very nice lady” but that there were legitimate

concerns as outlined by the caseworker. A formal order was entered in October 2016 to

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reflect the required statutory findings as established by clear and convincing evidence. This

appeal followed.

Appellant argues to us that the trial court clearly erred, framing the issue as the trial

court having acted “unreasonably in refusing to afford [appellant] additional time in which to

demonstrate stability as a parent,” when appellant “had an appropriate relative....who was

willing and able to care for [VR.]” We are not firmly convinced that the trial court made

a mistake in finding termination to be in VR’s best interest.

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. Ark. Code

Ann. § 9-27-341(a)(3 (Repl. 2015)). This need for permanency overrides a parent’s request

for additional time to improve circumstances, and courts will not enforce parental rights to

the detriment of the well-being of the child. Villaros v. Ark. Dep’t of Human Servs., 2016 Ark.

App. 399, 500 S.W.3d 763; McElwee v. Ark. Dep’t of Human Servs., 2016 Ark. App. 214, 489

S.W.3d 704. A parent’s past behavior is often a good indicator of future behavior. Villaros,

supra.

The trial court recited appellant’s repetitive criminal behavior, the indefinite nature of

his future parole, and the testimony that gave reasons to question the viability of the paternal

grandmother’s home as an appropriate temporary placement for VR. This court is not to act

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as a “super factfinder,” substituting its own judgment or second guessing the credibility

determinations of the court; we reverse only in those cases in which a definite mistake has

occurred. Harris v. Ark. Dep’t of Human Servs., 2015 Ark. App. 508, 470 S.W.3d 316. In this

case, we are not left with a definite and firm conviction that a mistake was made.

Affirmed.

WHITEAKER and BROWN , JJ., agree.

Tabitha McNulty, 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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