Miller v. Arkansas Department of Human Services

Cite as 2017 Ark. App. 396

ARKANSAS COURT OF APPEALS
DIVISION III
No. CV-17-26
Opinion Delivered June 21, 2017

BRANDI MILLER AND DANA APPEAL FROM THE WASHINGTON
CROSBY COUNTY CIRCUIT COURT
[NO. 72J-16-34]
APPELLANTS
HONORABLE STACEY ZIMMERMAN,
V. JUDGE

ARKANSAS DEPARTMENT OF AFFIRMED
HUMAN SERVICES AND MINOR
CHILDREN
APPELLEES

DAVID M. GLOVER, Judge

This is an appeal from the termination of the parental rights of Dana Crosby and

Brandi Miller to two children, D.C. (D.O.B. 1/04/2015 - female) and D.C. (D.O.B.

3/31/2005 - male). Brandi has other children not fathered by Dana who were involved in

this case, but these two children are the only ones involved in this appeal. Brandi and Dana

have each filed separate briefs. Brandi challenges only the adoptability prong of the trial

court’s best-interest finding. Dana challenges the statutory grounds and the potential-harm

prong of the best-interest finding. We affirm the termination of parental rights with respect

to both parents.

This case originated in Sebastian County. D.C. (male) was taken into custody in late

October 2013. D.C. (female) was not yet born. The case arose because Dana and Brandi

were involved in a domestic disturbance. Brandi was at Dana’s house; they were arguing;
Cite as 2017 Ark. App. 396

Brandi tried to take D.C. (male) but Dana did not want her to because he said she was

homeless. Dana told Brandi to leave, locked her out, and she kicked in the window.

Although D.C. (male) was born March 31, 2005, Dana and Brandi did not marry until April

10, 2010. Consequently, at that point, Dana was not recognized as D.C. (male)’s legal father,

and because Brandi was being arrested on outstanding warrants, a seventy-two-hour hold

was taken on D.C. (male). The affidavit further noted that Dana had been drinking beer

and was visibly upset by the incident. An emergency custody order was entered; Brandi

stipulated to probable cause; and a referral was made for Dana to be tested for paternity.

On December 27, 2013, D.C. (male) was adjudicated dependent-neglected.

Reunification was the original goal. The case proceeded with services offered and review

hearings held. The March 10, 2014 review order found The Arkansas Department of

Human Services (DHS) had made reasonable efforts to provide services to achieve the goal

of reunification, and genetic testing established Dana was the biological and legal father of

D.C. (male). The order further found the parents had not complied with the court’s orders

or the case plan. In particular, the court found they had not obtained stable and appropriate

income, employment, and transportation; had not completed a drug-and-alcohol

assessment; had not completed parenting classes; had tested positive for THC during the

pendency of the case; and had not completed hair-follicle testing despite multiple referrals

by DHS. In addition, the court found that although Dana had obtained stable and

appropriate housing, Brandi had not.

In the August 11, 2014 permanency-planning order, the trial court set concurrent

goals of reunification and termination, finding the parents were compliant with portions of

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the case plan and court orders, but not compliant with others. The portions where they

were noncompliant included failure to complete a drug-and-alcohol assessment, testing

positive for illegal substances during the pendency of the case, Dana’s failure to complete a

hair-follicle drug test as requested, failure to complete parenting classes or domestic-violence

classes, and issues regarding regular visits with the children. The trial court further found

DHS had made reasonable efforts to provide family services and to finalize a permanency

plan. On August 13, 2014, a judgment of paternity was entered establishing Dana as the

father of D.C. (male) and ordering him to pay child support in a specified amount.

On November 10, 2014, the trial court entered a fifteen-month permanency-

planning order, which changed the goal of the case to adoption, following termination of

parental rights. The trial court found the parents had not complied with the established case

plan or the court orders, had not made significant measurable progress toward achieving the

case plan’s established goals, and had not been diligently working towards reunification.

The court’s specific findings of noncompliance included failure to complete drug-and-

alcohol assessments, failure to participate in individual and family counseling, testing positive

for illegal substances throughout the pendency of the case, failure to complete parenting

classes and domestic-violence classes, and missing a significant number of visits with the

children. The court further found DHS had made reasonable efforts to provide family

services.

On December 31, 2014, DHS filed a petition for termination of parental rights. On

March 26, 2015, Brandi moved to continue the termination hearing because she and Dana

had another child, D.C. (female), who was born on January 4, 2015, and had complications

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due to a premature birth. On April 9, 2015, the trial court entered a review order in which

it granted the motion for continuance, reviewed the case, and noted that all parties expressly

waived the ninety-day period required by the juvenile code for a petition to terminate

parental rights to be heard. The goal of the case remained adoption following termination

of parental rights.

Following a continuance requested by DHS, another permanency-planning hearing

was eventually held on August 13–14, 2015. By amended order entered on September 25,

2015, the trial court changed the goal from adoption and termination to reunification,

finding that it was in the children’s best interest to give the parents more time to comply

but cautioning the parents that they did “not have much longer.” The court found the

parents had not shown stable and appropriate housing or income and had not completed a

drug-and-alcohol assessment. In addition, the order recounted evidence entered by the

court, including an affidavit of arrears regarding Dana’s child-support obligations, Dana’s

April 3, 2015 drug-screen result, counseling summaries, and certified copies of transcripts of

a judgment against Dana for possession of instrument of a crime from an original charge of

possession of marijuana. The order further noted that DHS proffered an August 12, 2015

drug screen for Dana showing positive results for THC and methadone and that DHS had

made reasonable efforts to provide services.

Soon thereafter, on October 22, 2015, D.C. (female) was removed from her parents’

custody. An emergency custody order was entered on October 23, 2015 for D.C. (female).

The accompanying affidavit explained in part that DHS had received a call on October 21

reporting that Brandi’s older daughter (not involved in this appeal) had threatened to kill

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herself if she were returned to Brandi’s house, making allegations against Brandi and also

alleging Dana provided her with marijuana. When family-service workers went to Brandi

and Dana’s house to inform them a hold had been placed on Brandi’s older daughter, Brandi

became irate, both parents were unwilling to submit to a drug screen, the family-service

workers called police to help calm the situation, the parents then engaged in a heated

argument with a police officer, and both parents acknowledged they had moved in the last

month and that neither of them was working or drawing government benefits. A medical-

records review revealed D.C. (female) was behind on all of her immunizations. The affidavit

further revealed that after the seventy-two-hour hold had been placed on D.C. (female),

Brandi and Dana submitted to a drug screen, that showed both were positive for THC.

A probable-cause hearing was held on October 27, 2015, the parents stipulated

probable cause existed, and the probable-cause order was entered on November 17, 2015.

Both parents were ordered to submit to hair-follicle drug testing as requested by DHS.

A review/adjudication hearing was held on December 8, 2015. By adjudication

order entered on January 4, 2016, D.C. (female) was adjudicated dependent-neglected,

finding in part that D.C. (female) tested positive “at very high levels” for illegal substances,

including methamphetamine, cocaine, and THC, while under the care of her parents. In

the review order, also entered on January 4, 2016, the trial court further found the parents

had not complied with the case plan or the court’s orders. In particular, they had moved to

Fort Smith during the review period and Brandi then returned to her father’s house in

Fayetteville; they were not working and had no stable income; they failed to complete drug-

and-alcohol assessments; they failed to complete parenting classes; they failed to obtain

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counseling/anger management; and they continued to test positive for THC. The trial court

set concurrent goals of reunification and adoption following termination of parental rights.

Soon thereafter the case was transferred from Sebastian County to Washington

County. The January 27, 2016 review hearing was continued until April 13, 2016, but an

interim review hearing was held on February 24, 2016. In the February 25, 2016 review

order, the trial court found Brandi and Dana had not complied with many of the items

specified in the case plan and court orders. In particular for Dana, the court found he had

not submitted to random drug screens; he had not completed parenting classes; he had not

attended all of the visitations; he had not gone to counseling; and he did not have stable

housing.

The scheduled April 13, 2016 setting became a permanency-planning hearing for

D.C. (male) and a review hearing for D.C. (female). By order entered the same date, the

trial court continued the goal of reunification for both children until the next scheduled

hearing set for May 13, 2016.

On May 13, 2016, part two of the permanency-planning hearing for D.C. (male)

was held along with a permanency-planning hearing for D.C. (female). By order entered

the same date, the trial court changed the goal with respect to both children to termination

of parental rights, specifically finding with respect to Dana that he had not maintained his

weekly contact with DHS, had not submitted to random drug screens (even though he

tested clean on a drug screen that day), had not demonstrated sobriety, had not provided

proof of completion of parenting classes and stable employment, and was behind on his

child support. The court further found DHS had provided reasonable services.

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On June 13, 2016, DHS filed a petition for termination of Brandi’s and Dana’s

parental rights. The termination hearing was held on September 7, 2016, after which the

trial court entered its order terminating their parental rights to D.C. (male) and D.C.

(female).

Our review of cases involving the termination of parental rights is de novo. Harbin

v. Arkansas Dep’t of Human Servs., 2014 Ark. App. 715, 451 S.W.3d 231. Grounds for

termination must be proved by clear and convincing evidence, which is such a degree of

proof that will produce in the fact-finder a firm conviction as to the allegation sought to be

established. Id. Our inquiry is whether the trial court’s finding that the disputed fact was

proved by clear and convincing evidence is clearly erroneous. Id. Credibility determinations

are left to the fact-finder. Id.

Termination of parental rights is a two-step process requiring a determination that

the parent is unfit and that termination is in the best interest of the child. Id. The first step

requires proof of one or more statutory grounds for termination; the second step, the best-

interest analysis, includes consideration of the likelihood the juvenile will be adopted and of

the potential harm caused by returning custody of the child to the parent. Id. In determining

potential harm, which is forward-looking, the court may consider past behavior as a

predictor of likely potential harm should the child be returned to the parent’s care and

custody. Id. There is no requirement to establish every factor by clear and convincing

evidence; after consideration of all factors, the evidence must be clear and convincing that

termination is in the best interest of the child. Id.

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Brandi Miller

Brandi’s only contention is that the trial court erred in terminating her parental rights

because the likelihood-of-adoption prong of the best-interest finding was not supported by

sufficient evidence. We disagree.

Melanie Chandler, a family-service worker, testified at the termination hearing. She

stated D.C. (male) was an adoptable child; he was very bonded to the family with whom he

had been placed in foster care; he was doing very well there; and she believed it was a pre-

adoptive placement for him. Chandler further testified D.C. (female) was an adoptable little

girl; she was healthy, happy, doing well, and had bonded with her foster family; and her

foster family was a potential permanent placement for her.

In reaching the overall best-interest finding, the trial court must consider two factors:

the likelihood of adoption and the potential for future harm. Harbin, supra. While these two

factors must be considered by the trial court, neither has to be established by clear and

convincing evidence. Rather, after consideration of all factors, the evidence must be clear

and convincing that it is in the children’s best interest to terminate parental rights. Harbin,

supra.

Here, the trial court clearly considered the adoptability prong. There was testimony

from the family-service worker that she believed both children were adoptable, along with

details concerning their health and how they were progressing and how they were getting

along in their placements. Based on the evidence presented, the trial court found it was

likely the children would be adopted. We are not left with a definite and firm conviction

that the trial court made a mistake in this regard.

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Dana Crosby

The statutory grounds alleged for termination of Dana’s parental rights were

“subsequent factors” and “twelve-month/failure to remedy.” Ark. Code Ann. § 9-27-341

(Repl. 2015). The trial court found DHS proved both grounds. Proving the existence of

only one ground is sufficient. Martin v. Arkansas Dep’t of Human Servs., 2017 Ark. 115, ___

S.W.3d ___. In addition, the trial court found it was in the children’s best interest to

terminate Dana’s parental rights, taking into consideration the likelihood they would be

adopted and the potential for harm if they were returned to Dana. Dana challenges the trial

court’s findings regarding the statutory grounds and also the potential-harm prong of the

best-interest analysis. We find no basis for reversal.

The long procedural history of this case has already been set forth, was part of the

record before the Washington County Circuit Court, and need not be repeated here. At

the termination hearing, Melanie Chandler testified she did not believe the children would

be safe if they were returned to Dana. She explained Dana had not demonstrated stability,

he had not followed the court’s orders or the case plan, he was still staying with his

grandmother in Fort Smith, and he had not followed through with services set up by a

secondary worker in Sebastian County or with services set up in Washington County. She

said she did not feel Dana was in compliance with the court’s orders.

Chandler explained Dana had not maintained weekly contact with her; had not kept

her informed of his whereabouts; had not demonstrated sobriety; and had not submitted to

a drug-and-alcohol assessment or submitted to random drug screens every other week in

Sebastian County. She further explained Dana had a secondary worker in Sebastian County

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for these services; he had not provided her with proof of completion of twelve hours of

parenting classes; he had not demonstrated an ability to protect D.C. (male) and D.C.

(female) and keep them safe from harm; and he was not in compliance with the case plan

and court orders. Chandler testified permanency was the most important thing for D.C.

(male) and D.C. (female); yet, DHS had been involved with this family for almost three

years, and Brandi and Dana had never been in full compliance with the case plan and court

orders.

Dana testified he had lived in Fort Smith and worked at a flooring company for more

than a year. He stated he had tried to be in regular contact with Chandler; that he would

call every morning in front of his boss; he would leave messages but had not been able to

physically talk to her; and the last time he recalled actually talking to Chandler was before

the last hearing. He said his secondary worker in Sebastian County had come by his house

one time and had taken a urine test but he never heard back from her. He acknowledged

she told him her name, but he could not remember it. He first stated he had tried to call

DHS in Sebastian County but was not able to get in touch with anyone. He then explained

that the Sebastian County office personnel told him they did not have any Washington

County cases and he needed to call his Washington County caseworker to get information.

He said he tried to call Chandler and did not get an answer.

Dana testified he was never called to come in for a drug-and-alcohol screening or

assessment. He acknowledged he was the one who was supposed to pursue the drug-and-

alcohol screening and assessment but stated he did not know whom to contact. He stated

he was not given any referrals for parenting classes; he completed the psychological

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evaluation but was not recommended for any counseling. He testified he was separated from

Brandi and planned to get a divorce.

Dana testified the last time he talked to D.C. (male), D.C. “kind of broke down on

me and let me know he’s ready to come home . . . [h]e was tired of waiting around on it.”

He stated he had been visiting with both of his children until “today,” explaining that the

visit scheduled for the date of the hearing slipped his mind because of everything going on.

He said his other visits “have been excellent.”

Dana expressed his belief that he had proved stability. He stated he had a regular

income, and he paid his bills. He acknowledged, however, he was behind in his child

support “quite a bit.” He explained he had started making payments a couple of months

ago, and the payments came out of his paycheck once a week. He acknowledged he had

not taken this case as seriously as it warranted at the beginning; he did not get a drug-and-

alcohol assessment in 2014 or 2013; he was just re-referred but did not get one; and he has

set up an appointment for one. He also acknowledged he had been ordered to undergo

random drug screens; he had not brought with him any proof that he had gone to AA or

NA meetings despite the fact he knew the court was concerned about his sobriety. He

explained a person needs a referral for parenting classes in Sebastian County, but they didn’t

have any information on this case in Sebastian County. He acknowledged, however, he did

not try to find a place where he could go and get parenting classes to show the judge he was

trying to comply with the orders.

Upon questioning by the trial court, Dana acknowledged D.C. (male) had been in

DHS custody since October 2013; D.C. (female) came into care about ten months later;

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and the case was transferred to Washington County from Sebastian County when Brandi

moved to Washington County, while he remained in Fort Smith. He stated the children

were brought to his house for visits; the visits were “excellent”; D.C. (male) had lived there

before and was “right at home”; and D.C. (female) feels at home also because she sees that

her brother is comfortable. He said the last time he and Brandi lived together was when

DHS came and got D.C. (female) in the fall of 2015.

Arkansas Code Annotated section 9-27-341(b)(3)(B)(vii) (a) sets forth the

“subsequent factors” ground for termination, which is one of the statutory grounds the trial

court found DHS had proved in this case:

(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 or indifference to remedy the subsequent issues or factors
or rehabilitate the parent’s circumstances which prevent the placement of the
juveniles in the custody of the parent.

With respect to this ground, the termination order provided in part that Dana Crosby had

not maintained weekly contact with DHS, had not submitted to random drug screens, had

not demonstrated sobriety, had not provided proof of completed parenting classes, and had

missed a visit with the children on the date of the hearing. The trial court further noted

Dana was behind on his child support, and the children had lingered long enough because

the three-year timeline of the case had to be viewed from the perspective of the children.

Dana challenges the court’s finding with several arguments, including one in which

he seems to argue that because he did not undergo drug screens, there were no drug screens

to show that he had been using drugs, and therefore, any finding he had not maintained his

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sobriety was based on speculation. He further argues, that with respect to maintaining

contact with DHS, someone from DHS brought the children to him for his regular visits

and that those visits were coordinated among him, the foster parents, and DHS, and that he

had tried to be in contact with Ms. Chandler, calling her every morning in front of his boss

and leaving messages, but he got no response. Concerning his visits with his children, he

argues they were “excellent.” He explains he forgot about the visit scheduled on the date

of the termination hearing because he was so focused on the hearing; acknowledging in a

footnote, however, that “the only other information in the record regarding the frequency

of visits was at the Review Order on April 9, 2015 (more than a year prior to termination),

finding that Dana made 28 of 53 visits.” With respect to his lack of stability in employment

and housing, he argues he maintained the same housing and employment for more than a

year prior to the hearing. He further argues he did not engage in couples counseling because

he and Brandi were separated and he planned to file for divorce. With respect to any failure

to engage in family counseling with D.C. (male), he argues there was “absolutely no

indication in the record that [he] was offered and refused the counseling, in fact [he] testified

that he wasn’t recommended to do counseling.” We do not find any of his arguments

convincing.

A parent’s failure to comply with court orders can serve as a “subsequent factor”

upon which termination can be based. Clements v. Arkansas Dep’t of Human Servs., 2013

Ark. App. 493. Here, Dana was ordered to do several things throughout the course of this

case. He completed some of the things he was ordered to do, but not all. DHS presented

several areas of noncompliance, and the trial court was satisfied that DHS proved several

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specific deficiencies. In addition, Dana acknowledges that he was ordered to complete

parenting classes and undergo a drug-and-alcohol assessment throughout the case and that

he did not do so. During the course of the case, he tested positive for THC, even as late as

January 2016. He also did not pay child support as ordered.

Dana’s attempt to rely upon his own failure to undergo drug screens to somehow

argue that the trial court’s finding that he failed to demonstrate sobriety was based on

speculation is misguided. Similarly, his argument that his conversations with DHS personnel

and the foster parents about the mechanics of scheduling visits with his children was

tantamount to satisfying his obligation to maintain weekly contact with DHS is not

convincing. Moreover, to the extent Dana’s arguments include contentions he was not

provided with reasonable family services, over the long course of this case he failed to object

to the trial court’s repeated findings that DHS had made reasonable efforts. In addition, his

argument that the three-to-four-month span of time from the permanency-planning hearing

to the termination hearing was without reasonable efforts falls far short of providing a basis

for reversal.

We are not left with a definite and firm conviction that the trial court made a mistake

in concluding that DHS proved the “subsequent factors” ground in this case. Because the

proof of one statutory ground is sufficient to demonstrate parental unfitness, it is unnecessary

to address Dana’s challenge to the second statutory ground. Martin, supra.

Finally, the same evidence that supports the “subsequent factors” ground also

supports the potential-harm prong of the trial court’s best-interest finding, which is the only

prong Dana challenges. In addition to the other areas of noncompliance established by DHS,

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Dana acknowledges he was ordered to complete parenting classes and undergo drug-and-

alcohol assessments throughout the case but did not do so. Neither did he pay child support

as ordered. During the course of the case, he tested positive for THC, even as late as January

2016. The trial court was not required to find that actual harm would ensue if the children

were returned to the parent nor to affirmatively identify a potential harm. Sharks v. Arkansas

Dep’t of Human Servs., 2016 Ark. App. 435, 502 S.W.3d 569. The potential-harm analysis

is to be conducted in broad terms. Id.

The intent of our termination statute is to provide permanency in a minor child’s life

in circumstances where returning the child to the family home is contrary to the child’s

health, safety, or welfare, and where the evidence demonstrates the return cannot be

accomplished in a reasonable period of time as viewed from the child’s perspective. Harbin,

supra. The child’s need for permanency and stability may override the parent’s request for

additional time to improve the parent’s circumstances. Id. The issue is whether the parent

has become a stable, safe parent able to care for the child. Id. The court may consider the

parent’s past behavior as an indicator of future behavior, and even full compliance with the

case plan is not determinative. Id. Finding no clear error in the trial court’s bases for

terminating Dana’s parental rights to D.C. (male) and D.C. (female), we affirm.

Affirmed.

ABRAMSON and GLADWIN, JJ., agree.

Tina Bowers Lee, Arkansas Public Defender Commission, for appellant Brandi
Miller.
Dusti Standridge, for appellant Dana Crosby.
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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