Brasher v. Arkansas Department of Human Services

Cite as 2017 Ark. App. 455

ARKANSAS COURT OF APPEALS
DIVISION IV
No. CV-17-73

Opinion Delivered: September 20, 2017
BRITTNEY BRASHER
APPELLANT
APPEAL FROM THE BOONE
V. COUNTY CIRCUIT COURT
[NO. 05JV-14-90]
ARKANSAS DEPARTMENT OF HUMAN
SERVICES AND MINOR CHILD
APPELLEES HONORABLE DEANNA “SUZIE”
LAYTON, JUDGE

AFFIRMED

RAYMOND R. ABRAMSON, Judge

Brittney Brasher appeals the Boone County Circuit Court order terminating her

parental rights to her daughter, D.M. 1 On appeal, she argues that the circuit court erred in

finding that it was in D.M.’s best interest to terminate her parental rights. We affirm.

On December 8, 2014, the Arkansas Department of Human Services (DHS)

petitioned the circuit court for emergency custody and dependency-neglect over D.M. The

affidavit attached to the petition stated that D.M.’s father had left her in the custody of her

maternal great-grandparents and that their residence was inappropriate for the child. 2 The

1
The court also terminated the parental rights of D.M.’s father, Daniel Miller, but he
is not a party to this appeal.
2
Specifically, the affidavit stated that the residence had “a plethora of roaches” on the
walls and kitchen cabinets and that trash was piled on the floor. It also stated that D.M.’s
maternal great-grandmother had a history with DHS that included findings of
environmental neglect.
Cite as 2017 Ark. App. 455

affidavit noted that Brasher was incarcerated in Texas for a child-endangerment charge and

that the State of Arkansas had terminated her parental rights to two other children as a result

of her methamphetamine addiction. The court entered an ex parte order for emergency

custody on the day the petition was filed. On December 12, 2014, the court found probable

cause for the emergency custody. On February 24, 2015, the court adjudicated D.M.

dependent-neglected.

On May 13, 2015, the court held a review hearing. Brasher appeared for the hearing

by telephone because she remained incarcerated in Texas. The court ordered Brasher to

comply with the case plan and court orders and to cooperate with DHS.

On August 11, 2015, the court held a second review hearing. The court noted that

Brasher had been released from jail in Texas in May 2015 but that she did not contact DHS

until the current hearing, she had not visited D.M., and she had not complied with the case

plan. The court changed the goal of the case to adoption but ordered Brasher to continue

to comply with the case plan. Specifically, the court ordered her to provide paycheck stubs

to DHS, to attend counseling, and to submit to random drug screens.

On February 9, 2016, the court held a permanency-planning hearing. The court

found that Brasher had not complied with the case plan. The court noted that Brasher was

arrested in November 2015 on an old warrant for a parole violation in Arkansas and had

remained incarcerated through December 15, 2015. The court further noted that she had

not consistently visited D.M., had attended only a few counseling sessions, and did not have

steady employment.

2
Cite as 2017 Ark. App. 455

On July 18, 2016, DHS filed a petition for termination of Brasher’s parental rights.

DHS alleged five grounds for termination. 3 On August 17 and 23, the court held a

termination hearing. Brasher testified that she was currently living with her fiancé, Jeffery

Muldoon. She explained that they had lived together for a little over a year and planned to

move into a bigger house. She stated that she was working temporary jobs for family and

friends and that she also had filed for disability due to her seizures and anxiety. She testified

that Muldoon is employed and that their joint income is sufficient to support D.M. She

further noted that Muldoon had a previous drug addiction and that he was currently on

probation.

Brasher explained that when she was released from prison in Texas, she did not

immediately contact DHS because she did not have transportation back to Arkansas. She

noted that a friend eventually paid for her transportation to Arkansas, and when she

returned, she again did not contact DHS because she did not have a stable home. Her

grandmother later informed her about the August 2015 review hearing.

Brasher testified that D.M. first entered the foster-care system in North Dakota in

2012, when she was born with methamphetamine in her system. She stated that she had

two other children, L.M. and A.M., and that her parental rights had been terminated to

them. As to the current case, she testified that she had attended scheduled visitations with

D.M. unless her seizure disorder prevented her from attending.

3
Specifically, DHS alleged grounds pursuant to Arkansas Code Annotated sections 9-
27-341(b)(3)(B)(i)(a), (ii)(a), (iv), (ix), (vii)(a) (Repl. 2015).

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Brasher further testified that drugs had been a problem throughout her life and that

her “drug of choice” is methamphetamine. She explained that she had participated in the

drug-court program in 2009 but had relapsed. She stated that she has now been sober for

four years. She explained that she reentered the drug-court program about six months before

the hearing and hoped to complete the program by March 2018. If she failed, she would

receive a six-year prison sentence. Brasher testified that she chairs Narcotics Anonymous

meetings and that she also attends a Christian-based program called “Breaking the Chains.”

She testified that DHS had referred her for a drug-and-alcohol assessment but that she did

not complete the assessment because she had already completed an assessment in drug court.

She also participated in counseling through drug court.

At the hearing, Brasher introduced into evidence a letter from the deputy prosecutor.

In the letter, the prosecutor commended Brasher on her performance in the drug-court

program and stated that “she is one of the more pleasant people in drug court.” However,

the prosecutor further noted that as a result of her criminal history, Brasher began the

program with three strikes. He explained that if Brasher tests positive for an illegal substance

or alcohol, or is charged with a jailable offense, she will be terminated from the program

and will automatically receive a six-year sentence in the Arkansas Department of Correction.

Charles Hurley, a DHS family-service supervisor, testified that he oversaw D.M.’s

case. He stated that for eight of the twelve months he supervised the case, Brasher was

incarcerated. He further verified that Brasher did not contact DHS when she was initially

released from prison in Texas. He stated that when Brasher eventually contacted DHS, he

made a drug-and-alcohol-assessment referral and counseling appointments but that Brasher

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did not complete the assessment and attended only fifty-eight percent of the counseling

sessions. Hurley believed that Brasher had made measurable progress in the case but that her

living situation, her work situation, and her relationship status were unstable. He noted that

during the May 2015 hearing, when Brasher appeared by telephone while in prison in

Texas, Brasher stated that she planned to continue her relationship with D.M.’s father; but

after she was released from prison, she did not contact DHS and started a relationship with

Muldoon shortly thereafter. Hurley also pointed out that D.M. had been in foster care for

thirty months of her forty-two-month life. He further testified that D.M. is highly adoptable

and that individuals had expressed interest in adopting her.

Beth Christopher, a DHS family-service worker, testified that she supervised

Brasher’s visitations with D.M. She stated that the visits generally went well and that she

eventually would leave Brasher alone with the child for short increments of time. She noted,

however, on a few occasions, she had to cancel visitations because Brasher appeared to be

heavily medicated. She acknowledged that Brasher took seizure medications.

Carly Williams, also a DHS family-service worker, testified that she had worked on

D.M.’s case for about twenty-eight days beginning in July 2016. She stated that Brasher had

not provided her with documentation of employment. She explained that Brasher originally

told her that she was a Mary Kay consultant but that she later admitted she was not

generating income and planned to quit. She stated that as of last week, Brasher had no

income besides support from Muldoon.

Muldoon testified that in March 2011, he served a four-year prison sentence for

possession of methamphetamine. He stated that since his release, he has maintained his

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sobriety and has complied with his parole requirements. He noted that his parole would end

next month and that he is employed full time. Muldoon further testified that Brasher takes

medications only for her seizures and that she has maintained her sobriety throughout their

relationship. He had no concerns with her ability to parent D.M. Muldoon is committed to

supporting Brasher and D.M. financially, and he hopes to adopt D.M. when he and Brasher

marry.

Tammy Dewey, Brasher’s drug-court supervisor, testified that Brasher has been in

the program since January 19, 2016, she meets with Brasher twice a week, and Brasher had

missed only two meetings. She further stated that she had no reason to believe that Brasher

is using any illegal substances. She noted that Brasher has about twenty-four weeks left to

complete the program. She testified that Brasher is cooperative, stable, and very polite.

Dewey discussed Brasher’s previous participation in the program in 2009 and stated that

Brasher is now a different person. She stated that Brasher was consistently abusing drugs at

that time and that she absconded from the program within six months.

Yolande Watson, Brasher’s probation officer, testified that Brasher is polite and

cooperative and has tested negative on all drug screens. She stated that Brasher is required

to attend three Narcotics Anonymous meetings per week and that she has consistently

submitted documentation of her attendance. She further testified that Brasher is always

willing to participate in drug-court community-service events. At the conclusion of the

hearing, the court took the matter under advisement.

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Cite as 2017 Ark. App. 455

On November 9, 2016, the court entered a written order terminating Brasher’s

parental rights based on three grounds pled in the petition. In the order, the court specifically

found that

there is a potential harm to the health and safety of [D.M.] if she were returned to the
custody of [Brasher] today. At this time [D.M.] has been in care, as indicated, almost half
of her life and today the Court cannot find that the health and safety needs can be met
by returning [D.M.] to the home of [Brasher] . . . .

[Brasher] was released from prison on May 29, 2015, however [she] did not appear in
this Court or make contact with the Department until August 11, 2015. [Brasher] is still
dependent on others for her accountability and her own necessities. [Brasher] does not
have sufficient income, she does not have housing that she can sustain on her own or a
means thereto, she has not addressed her mental health needs, she has significant criminal
barriers for which she risks incarceration daily, and she is currently addressing substance
abuse issues, however, she has addressed those in the past with drug treatment and drug
court and both were unsuccessful on multiple occasions. [Brasher] is once again engaged
in a drug court program for which there is oversight and accountability. Without such
oversight and accountability, the Court finds that she would not be successful and that
the past has been an indicator of the future of her in regards to drugs and criminal activity
for which this case began with . . . .

The instability, given the age of [D.M.], would cause further harm to the child
emotionally at such a young age and place her at risk due to the lifestyle of the parents
reflected in testimony as one involving ongoing criminal activity and associations . . . .

The Court finds by clear and convincing evidence it is in the best interest of the Juvenile
to terminate the parental rights of . . . Brasher . . . and the Court specifically considered
the likelihood of [D.M.] to be adopted if termination is granted and the potential harm
to the health and safety of [D.M.] caused by returning to the custody of the parents
today, and the Court finds the testimony demonstrates same.

Brasher timely appealed the termination order to this court.

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

Human Servs., 2015 Ark. App. 131, 456 S.W.3d 383. It is DHS’s burden to prove by clear

and convincing evidence that it is in a child’s best interest to terminate parental rights as

well as the existence of at least one statutory ground for termination. Id. On appeal, the

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inquiry is whether the circuit court’s finding that the 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 it, the appellate court, on the entire evidence, is left with a

definite and firm conviction that a mistake has been made. Id. We give a high degree of

deference to the circuit court, as it is in a far superior position to observe the parties before

it and judge the credibility of the witnesses. Id.

The termination of parental rights is a two-step process. The circuit court must find

by clear and convincing evidence (1) the existence of one or more statutory grounds for

termination and (2) that termination is in the best interest of the children. Wafford v. Ark.

Dep’t of Human Servs., 2016 Ark. App. 299, 495 S.W.3d 96. In this case, Brasher does not

appeal the circuit court’s finding of a statutory ground for termination. She challenges only

the circuit court’s best-interest finding.

The best-interest analysis includes consideration of the likelihood that the children

will be adopted and of the potential harm caused by returning custody of the children to

the parent. Ark. Code Ann. § 9-27-341(b)(3)(A) (Repl. 2015). However, adoptability and

potential harm are merely factors to be considered—they are not elements of the cause of

action and need not be established by clear and convincing evidence. See Chaffin v. Ark.

Dep’t of Human Servs., 2015 Ark. App. 522, 471 S.W.3d 251. Rather, after considering all

of the factors, the circuit court must find by clear and convincing evidence that termination

of parental rights is in the best interest of the children. Id.

Brasher does not challenge the court’s adoptability finding. Instead, she argues that

the court erred in finding that she posed a risk of harm to D.M. She asserts that the court

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automatically terminated her rights merely because her parental rights had been terminated

to her other children. She argues that there was no connection between the harm present

in the prior case and the level of risk of harm to D.M. in this case. She notes that in the

present case, she benefited from DHS services and is ready for D.M. to return to her custody.

We hold that the circuit court did not clearly err in finding that it was in the best

interest of D.M. to terminate Brasher’s parental rights. The court did not automatically

terminate Brasher’s parental rights because her rights had been terminated in the past. The

court relied on Brasher’s current circumstances in concluding that it was not in D.M.’s best

interest to return to Brasher’s custody. Specifically, the court noted Brasher’s dependence

on others for income and housing and her unresolved criminal charges. Brasher had

significant time remaining in the drug-court program, and if she failed, she could be

sentenced to the Arkansas Department of Correction for six years. The court recognized

that Brasher had made some progress in the program but noted that she had entered the

program in the past, had been unsuccessful, and had not exhibited sobriety without the

oversight of a treatment program. As the court noted in its order, we have held that it is

appropriate for a circuit court to consider a parent’s past behavior as a predictor of likely

potential harm should the children be returned to the parent’s custody. Harbin v. Ark. Dep’t

of Human Servs., 2014 Ark. App. 715, 451 S.W.3d 231. Moreover, D.M. had already spent

more than half of her life in foster care. “Stability and permanence for children are the

objectives of the TPR procedure, and living in continued uncertainty is itself potentially

harmful to the children.” See Bean v. Ark. Dep’t of Human Servs., 2017 Ark. App. 77, at 30,

513 S.W.3d 859, 877. Given this evidence and the circuit court’s detailed and well-reasoned

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termination order, we are not left with a definite and firm conviction that a mistake has

been made. Accordingly, we hold that the circuit court did not err in finding that it was in

the best interest of D.M. to terminate Brasher’s parental rights.

Affirmed.

VAUGHT and HIXSON, JJ., agree.

Tabitha McNulty, Arkansas Public Defender Commission, for appellant.

Andrew Firth, Office of Chief Counsel, for appellee.

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

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