Kerr v. Arkansas Department of Human Services & Minor Children

Cite as 2016 Ark. App. 271

ARKANSAS COURT OF APPEALS
DIVISION IV
No. CV-16-71

CHARHON KERR Opinion Delivered May 18, 2016
APPELLANT
APPEAL FROM THE SEBASTIAN
V. COUNTY CIRCUIT COURT, FORT
SMITH DISTRICT
[NO. JV-2011-793]
ARKANSAS DEPARTMENT OF
HUMAN SERVICES AND MINOR HONORABLE LEIGH ZUERKER,
CHILDREN JUDGE
APPELLEES
AFFIRMED IN PART; REVERSED
AND REMANDED IN PART

RITA W. GRUBER, Judge

Charhon Kerr is appealing the Sebastian County Circuit Court’s order terminating her

parental rights to K.K. (born December 10, 2000) and C.M. (born September 4, 2002). She

contends that the trial court erred in granting the termination because there was no evidence

to establish that the Arkansas Department of Human Services (“DHS”) engaged in

meaningful efforts to correct the cause of the children’s removal. She also argues that the trial

court lacked evidence of adoptability and therefore that its best-interest determination was

clearly erroneous. We affirm the court’s finding regarding grounds, but we find merit in her

second point, and we reverse and remand.

The case began on December 11, 2011, pursuant to an investigation prompted by a

call to the Arkansas Child Abuse Hotline, and the children were removed from the home

after Kerr tested positive for methamphetamine. The children were adjudicated dependent-
Cite as 2016 Ark. App. 271

neglected on March 29, 2012, with a goal of reunification, and placed in the temporary

custody of their maternal great-grandparents.

In a review order entered on August 15, 2012, the trial court found that DHS had

made reasonable efforts to provide services to Kerr, including parenting classes, visitation,

drug-and-alcohol assessment, psychological evaluation, drug screening, and drug-treatment

referrals. The court found that the mother had partially complied with the case plan by

attending parenting classes, obtaining a drug-and-alcohol assessment, obtaining a

psychological evaluation, and submitting to drug screening. Kerr still did not have stable

housing or sufficient income, and she continued to use illegal substances. In fact, the court

found that Kerr had used marijuana within three days of the hearing and methamphetamine

within two to three weeks of the hearing. Finally, the court found that Kerr had attended

a residential drug program but left without completing the program.

The court held a permanency-planning hearing in December 2012 and changed the

goal to termination of parental rights and adoption. The court found that Kerr still had

insufficient income, continued to test positive for drugs, and had not completed parenting

classes. The court again determined that DHS had made reasonable efforts to finalize a

permanency plan and provide necessary services. DHS filed a petition for termination of

parental rights on January 14, 2013.

However, Kerr began to turn things around at that point and, in a review order

entered on March 15, 2013, the court found that Kerr had made “significant progress” in her

case plan since the permanency-planning hearing and authorized a trial placement of the

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children with her. The children were returned to Kerr’s custody after a review hearing held

on May 16, 2013.

Kerr’s rehabilitation was short-lived. Kerr reported to her caseworker that she had

relapsed, and she tested positive for THC on August 27, 2013. K.K. later discovered what

appeared to be methamphetamine under Kerr’s bed in February 2014, and on March 12,

2014, Kerr tested positive for THC and methamphetamine. On March 14, 2014, DHS filed

a petition for emergency custody, which the court granted that same day.

In a custody order entered on April 24, 2014, the trial court found that DHS had

made reasonable efforts to provide services to Kerr to prevent the need for removal of her

children from her custody, but that the services had not been successful because of Kerr’s

drug addiction and relapse into drug abuse. In an August 2014 permanency-planning order,

the court changed the goal of the case to termination and adoption with a concurrent goal

of permanent custody with a relative. The court found that Kerr had not complied with the

case plan and had not successfully addressed the conditions that caused removal because she

was still suffering from both mental-health issues and drug-abuse issues.

In a January 2015 review order, concerning review hearings held on September 25

and November 20, 2014, the court found that Kerr had made “some progress” and was

attending counseling and visiting as permitted. The court set the concurrent goals of

reunification with the mother and termination of parental rights and adoption. The court

found that DHS had again made reasonable efforts to provide services to achieve permanency

and that Kerr had made “some progress with the caseplan” by maintaining stable housing,

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attending counseling, visiting with the children as allowed by their treatment providers, and

submitting to random drug screens.

On April 2, 2015, DHS filed a petition for termination. After a termination hearing

on June 25 and July 1, 2015, the court entered an order terminating Kerr’s parental rights.

The court based its decision on three grounds: (1) the children had been adjudicated

dependent-neglected, they had continued out of the home in excess of twelve months, and

despite a meaningful effort by DHS to rehabilitate Kerr and correct the conditions that

caused removal, the conditions had not been remedied; (2) subsequent to the filing of the

original petition, other factors or issues arose that demonstrated that the return of the children

to Kerr was contrary to their health, safety, or welfare and that, despite the offer of

appropriate services, Kerr had manifested the incapacity or indifference to remedy the issues

or to rehabilitate her circumstances; and (3) Kerr subjected the children to aggravated

circumstances: specifically, there was little likelihood that further services would result in

successful reunification. Ark. Code Ann. § 9-27-341(b)(3)(B)(i)(a), (vii)(a), and (ix)(a)(3)

(Repl. 2015).

In support of these grounds, the court found that the children had been removed from

Kerr twice, both times due to her mental instability and drug use, and that Kerr had been

referred for services to address these issues but still struggled with them. The court noted that

Kerr had continued to use drugs and had admitted in the hearing that she had used marijuana

as recently as a week before the hearing and had sold methamphetamine after the children’s

second removal. The court also found that Kerr’s mental-health issues had increased since the

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initial petition. The court stated at the hearing that she appeared visibly unstable and had

refused to disclose her address to the court for unknown reasons. Finally, the court found

that DHS had provided appropriate services to Kerr for a substantial period of time—over

three years—but that she had not benefited from these services, and her circumstances had

not improved. The court recognized that reunification had failed once and that there were

no other services that DHS could provide to ensure that reunification would be successful

a second time.

The court also found by clear and convincing evidence that termination was in the

best interest of the children. The court stated that it had specifically considered the likelihood

that the children would be adopted and specifically found that the children were adoptable.

Finally, the court stated that it understood that the foster parents had expressed an interest

in adopting the children, that the attorney ad litem recommended this, and that DHS

intended to move forward with that plan.

We review termination-of-parental-rights cases de novo. Wilson v. Ark. Dep’t of

Human Servs., 2015 Ark. App. 666, at 7, 476 S.W.3d 816, 821. The trial court must make

two findings by clear and convincing evidence: (1) at least one statutory ground must exist,

and (2) it must be in the child’s best interest to terminate parental rights. 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 harm to

the child if custody is returned to a parent. Smith v. Ark. Dep’t of Human Servs., 2013 Ark.

App. 753, at 4, 431 S.W.3d 364, 367. The appellate inquiry is whether the trial court’s

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finding that the disputed fact was proved by clear and convincing evidence is clearly

erroneous. Brown v. Ark. Dep’t of Human Servs., 2015 Ark. App. 725, at 4, 478 S.W.3d 272,

275. Credibility determinations are left to the fact-finder, here the trial court. Henson v. Ark.

Dep’t of Human Servs., 2014 Ark. App. 225, at 7, 434 S.W.3d 371, 375.

I. Grounds for Termination

Kerr contends that the trial court clearly erred in granting DHS’s petition to terminate

because there was no evidence that DHS engaged in “meaningful efforts” to correct the

conditions that caused the children’s removal. Specifically, she argues that DHS failed to

provide appropriate services to her after the children were removed from her custody for the

second time after the trial placement with her. Kerr contends that the first two grounds on

which the trial court relied to terminate her parental rights—the failure-to-remedy ground

and the subsequent-factors ground—required DHS to prove that it offered her services to

help remedy the conditions that caused removal. She argues that DHS failed to do so.

The trial court’s grounds for termination were based on its consideration of the entire

four years in this case, not only on the time after the children had been removed from Kerr

for the second time. Every review order the court entered in this case contained a finding

that DHS had made reasonable efforts to provide appropriate services. Finally, and most

importantly, the trial court found a third ground that does not require DHS to provide

meaningful services. The trial court found that Kerr had subjected the children to aggravated

circumstances: specifically, that there was little likelihood that further services would result

in successful reunification. Ark. Code Ann. § 9-27-341(b)(3)(B)(ix)(a)(3). Only one ground

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is necessary to terminate parental rights. Lowery v. Ark. Dep’t of Human Servs., 2012 Ark. App.

478, at 5–6. In support of this finding, the court noted that DHS had provided appropriate

services to Kerr for a substantial period of time—almost four years—but that she had not

benefited from those services, and her circumstances had not improved. The court

recognized that reunification had failed once and there were no other services that DHS

could provide to ensure reunification would be successful a second time. We hold that the

court’s finding is not clearly erroneous.

II. Best Interest

Kerr also argues that the trial court clearly erred in finding that it was in the best

interest of the children to terminate her parental rights because there was a complete lack of

evidence introduced to establish that the children were adoptable. The trial 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 4. 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, id.—we have 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.

Here, although the trial court found that the children were adoptable and stated that

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it understood that the foster parents had expressed an interest in adopting the children, there

was no evidence introduced at the hearing to support this finding. The only evidence

regarding adoptability was K.K.’s testimony. She testified that she wanted her mother’s rights

terminated and that she wanted her foster parents to adopt her and C.M. This simply does

not constitute evidence regarding the likelihood that the children will be adopted. Further,

the court made no finding that this absence of evidence of adoptability made “no legal

difference” to the ultimate decision of what was in the children’s best interest. Accordingly,

given the absence of evidence and the failure of the court to determine that such absence

made no legal difference, we have no choice but to hold that the trial court clearly erred

when it found that termination of Kerr’s parental rights to the children was in their best

interest. It is unfortunate that the manner in which this issue was handled by all

involved—given the longstanding rules of law on this issue—served only to penalize the

children and their permanency.1

Affirmed in part; reversed and remanded in part.

GLADWIN, C.J., and KINARD, J., agree.

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

Jerald A. Sharum, County Legal Operations, for appellee.

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

1
See Fredrick v. Ark. Dep’t of Human Servs., 2009 Ark. App. 652 (Gruber, J.,
concurring).

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