Kelly Trogstad v. Arkansas Department of Human Services and Minor Children

Cite as 2020 Ark. App. 443
Reason: I attest to the accuracy ARKANSAS COURT OF APPEALS
and integrity of this document
Date: 2021-07-13 11:16:08
Foxit PhantomPDF Version: DIVISION II
No. CV-20-250
9.7.5

Opinion Delivered: September 30, 2020
KELLY TROGSTAD
APPELLANT
APPEAL FROM THE MILLER
V. COUNTY CIRCUIT COURT
[NO. 46JV-16-181]
ARKANSAS DEPARTMENT OF
HUMAN SERVICES AND MINOR
CHILDREN HONORABLE KIRK JOHNSON,
APPELLEES JUDGE
AFFIRMED

BART F. VIRDEN, Judge

The Miller County Circuit Court terminated appellant Kelly Trogstad’s parental

rights to two of her children, S.J. (DOB: 4-11-07) and A.T. (DOB: 8-27-12). Kelly argues

on appeal that the trial court erred in terminating her rights because there was insufficient

evidence of grounds and because termination is not in her children’s best interest. We affirm.

I. Background

A petition for dependency-neglect was filed by the Arkansas Department of Human

Services (DHS) on September 28, 2016, with respect to S.J. Attached to the petition was

the affidavit of a family-service worker who attested that on September 7, 2016, a report

had been received on the child-abuse hotline that S.J. had a black eye. At the time, the

family already had a differential-response case open. According to “DR Grundy,” S.J. had

been in and out of facilities, has anger issues, is on medication, and had recently run away.
Grundy told the family-service worker that “the children have been in foster care for the

same thing in Oklahoma.” Grundy also told the family-service worker that she had received

a late-night phone call from S.J.’s stepfather and Kelly’s husband, Jedediah Trogstad, during

which she heard screaming and the words “I’m about to slap him.” Grundy reportedly told

Jedediah that he could not slap S.J. to which Jedediah said that no one could tell him how

to punish his kids. The family-service worker later spoke with S.J. about how he had gotten

a black eye, and S.J. told her that Jedediah had kicked him in the eye for “smarting off.”

S.J. told her about other incidents in which Jedediah had struck him. Kelly acknowledged

that Jedediah had slapped S.J. because he had cursed at them. In the affidavit, the family-

service worker noted that DHS has an extensive history with the family dating back to 2002

and involving an older child belonging to Kelly. Also attached to the petition was a

protection plan that had been signed by Jedediah on September 23, 2016, agreeing that he

would not use corporal punishment on S.J. at any time for any reason.

On December 16, 2016, S.J. was adjudicated dependent-neglected based on the trial

court’s finding that he was at substantial risk of harm from abuse and parental unfitness. DHS

was ordered to continue to provide services to the family, and S.J. remained in his mother’s

custody.1 Review orders entered in February and May 2017 indicated that Kelly was

complying with the case plan and court orders. In August 2017, a review order indicated

that Kelly was complying with the case plan and court orders but that she had been arrested

The trial court ultimately terminated the parental rights of S.J.’s biological father,
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Samuel Jones, Sr., but he is not a party to this appeal.

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on June 10, 2017, for possession of drug paraphernalia. Among other things, she was ordered

to submit to a hair-follicle test.

On August 23, 2017, DHS filed a petition for emergency custody and dependency-

neglect. The trial court issued an ex parte order for emergency custody the same day and

found that Jedediah had grabbed S.J. by the head, picked him up, and thrown him across a

room. The trial court noted that Kelly was present when this occurred. The trial court also

found that Kelly had permitted A.T. to sit on her lap while she was driving and had admitted

slapping S.J. in the car. The trial court also found that an investigator had walked through

the family’s home and reported that it was in disarray, was foul smelling, and contained

exposed wiring. Moreover, the children’s clothing was not clean and smelled of mildew.

When asked about the recent incident that she witnessed between S.J. and Jedediah, Kelly

said that S.J. had started it. She also said that, if the children were going to be removed from

her custody, she did not want S.J. back.

On October 24, 2017, S.J. and A.T. were adjudicated dependent-neglected because

of abuse and parental unfitness. The trial court found that Kelly had failed to provide a safe

environment given the physical abuse inflicted on S.J. by Jedediah and that A.T. is at risk

given that Kelly refused to acknowledge her husband’s abuse of S.J. Kelly was ordered to

submit to a psychological evaluation; submit to a drug-and-alcohol assessment and

successfully complete counseling and rehabilitation if recommended; submit to random drug

screens; maintain housing and allow DHS access to the home; obtain employment; maintain

regular contact with the children; and continue to cooperate with DHS.

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Review orders entered in January and April 2018 indicated that Kelly was complying

with the case plan and court orders. A permanency-planning order was entered in August

2018, which likewise indicated that Kelly was complying with the case plan and court

orders. A fifteen-month review order entered November 29, 2018, however, indicated that

Kelly had not complied with the case plan and court orders in that Kelly had failed to

provide a home address to DHS and had failed to submit to random drug screens. The trial

court ordered supervised visitation because of Kelly’s positive drug screens.

DHS subsequently filed a petition to terminate Kelly’s parental rights alleging four

grounds. A hearing was eventually held on August 28 and September 4, 2019. On January

13, 2020, the trial court issued a nineteen-page, single-spaced letter opinion granting DHS’s

petition. On February 5, 2020, the trial court entered an order terminating Kelly’s parental

rights on the basis of four grounds found in Ark. Code Ann. § 9-27-341(b)(3)(B): (i)(a)

(one-year failure to remedy); (ii)(a) (failure to provide significant support or maintain

meaningful contact); (vii)(a) (subsequent factors or issues); and (ix)(a) (aggravated

circumstances). The trial court also considered the children’s best interest. It is clear that the

trial court considered the likelihood of adoptability because it noted that an adoption

specialist had testified that there are over 100 potential adoptive homes for the siblings. It

further found that Kelly had ample time to comply with the case plan but that she seemed

unwilling to remedy the situation in that she failed to address her drug issues and continued

to test positive for drugs. Kelly filed a timely notice of appeal.

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II. Standard of Review

A trial court’s order terminating parental rights must be based on findings proved by

clear and convincing evidence. Ark. Code Ann. § 9-27-341(b)(3) (Supp. 2019). Clear and

convincing evidence is defined as that degree of proof that will produce in the fact-finder a

firm conviction as to the allegation sought to be established. Brown v. Ark. Dep’t of Human

Servs., 2018 Ark. App. 104, 542 S.W.3d 899. The appellate court reviews termination-of-

parental-rights cases de novo but will not reverse the trial court’s ruling unless its findings

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

support it, the reviewing court on the entire evidence is left with a definite and firm

conviction that a mistake has been made. Id. In determining whether a finding is clearly

erroneous, an appellate court gives due deference to the opportunity of the trial court to

judge the credibility of witnesses. Id.

In order to terminate parental rights, a trial court must find clear and convincing

evidence as to one or more of the grounds for termination listed in section 9-27-

341(b)(3)(B); however, only one ground must be proved to support termination. Brown,

supra. The trial court must also find by clear and convincing evidence that termination is in

the best interest of the juvenile, taking 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. Ark. Code Ann. § 9-27-341(b)(3)(A)(i) & (ii).

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III. Discussion

A. Grounds for Termination

Kelly challenges all of the grounds found by the trial court. Because proof of only

one ground is necessary to support termination, we will address aggravated circumstances.

Section 9-27-341(b)(3)(B)(ix)(a)(3)(A) & (B) provides that “aggravated circumstances”

means a juvenile has been abandoned, chronically abused, subjected to extreme and repeated

cruelty, or sexually abused, or a determination has been made by a judge that there is little

likelihood that services to the family will result in successful reunification. The trial court

appears to have based its finding of aggravated circumstances on a little-likelihood

determination.2 There must be more than a mere prediction or expectation on the part of

the trial court that reunification services will not result in successful reunification. Cloninger

v. Ark. Dep’t of Human Servs., 2020 Ark. App. 282.

Kelly argues that DHS failed to prove that there is little likelihood that services will

result in successful reunification because DHS did not provide her with drug treatment. She

acknowledges that a finding that DHS has made reasonable efforts to provide services is not

required for a little-likelihood determination.3 Nevertheless, Kelly asserts that the little-

likelihood determination was based on her drug use over the last year of the case, during

which time DHS provided no services for her to remedy the situation. She asserts that drug

2
This court may utilize a trial court’s oral pronouncements to determine the intent
behind its written orders. Ward v. Ark. Dep’t of Human Servs., 2014 Ark. App. 491. Here,
the trial court’s order is informed by its detailed letter opinion.

Cloninger, supra; Guardado v. Ark. Dep’t of Human Servs., 2019 Ark. App. 16, 568
3

S.W.3d 296; Kohlman v. Ark. Dep’t of Human Servs., 2018 Ark. App. 164, 544 S.W.3d 595;
McLemore v. Ark. Dep’t of Human Servs., 2018 Ark. App. 57, 540 S.W.3d 730.

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treatment was a “critical service” that affected her progress, as in Duncan v. Arkansas

Department of Human Services, 2014 Ark. App. 489.

In Duncan, this court reversed the trial court’s decision to terminate Duncan’s

parental rights to six children based on three grounds. This court concluded that there was

a delay in providing counseling, with which Duncan had made improvements and shown

progress. That critical service was in connection with the failure-to-remedy ground, which

requires reasonable efforts to provide appropriate services. With respect to the aggravated-

circumstances ground, however, this court concluded that because Duncan was in

compliance with the case plan throughout the case and making progress in therapy, the trial

court clearly erred in finding that additional services would not result in successful

reunification. Duncan, 2014 Ark. App. 489, at 9–10.

Duncan is distinguishable. Duncan’s children were removed from her custody in July

2012, and her parental rights were terminated in a January 2014 order following a

November 2013 hearing. Duncan had not begun individual counseling until September

2013. In other words, she had only approximately three months to benefit from the

counseling. Here, Kelly had over two years to regain custody of her children, and DHS did

not delay providing drug-related services to Kelly.

Fairly early on in her case, Kelly submitted to a drug assessment, and intensive

counseling was recommended. The trial court found that, instead of entering one of the

recommended counseling programs offered by DHS, Kelly began attending a program at

her local church called “RU,” with which the trial court was not familiar. The trial court

had some question whether Kelly’s attendance at RU was an “honest effort to overcome

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her addiction” or a way to avoid the intensive treatment that she needed. The trial court

noted that it was more inclined to believe the latter. The trial court found that Kelly had

not once tested negative for drugs, that she had refused to submit to drug screens by not

giving DHS a physical address, and that she had evaded a drug test by clipping her nails. In

fact, Kelly appeared to be under the influence of drugs at the termination hearing. The trial

court told Kelly’s counsel, “[Y]our client is squirming around like a worm in hot ashes,

gesticulating, appears to be agitated and knocking on the table, facial contortions, and I

mean it just appears she’s tweaking, probably from meth.” Kelly was drug tested following

the hearing. The test results were abnormal in that the temperature of the sample was cold.

The trial court wrote in its letter opinion that it was clear that Kelly had tried to pass off

someone else’s urine as her own.

It is true, as Kelly asserts, that DHS did not provide her drug treatment over the

course of the last year of her case; however, notwithstanding her lack of drug treatment,

there was other evidence that demonstrated there was little likelihood that services would

result in successful reunification. In a psychological evaluation dated November 8, 2017, the

examiner wrote that Kelly had received a general IQ score of 48, which placed her in the

extremely low-average range of overall intellectual functioning. It was also noted that her

responses indicated a “faking good” profile. The examiner wrote,

She appears to lack the skills for effective parenting and childcare, and has no means
to support the children. She would require live-in supervision and support, in this
examiner’s opinion, to rear a child, and also financial support, drug rehabilitation,
education, and ongoing counseling. It appears that adoption might be an option for
her younger child, and a residential treatment center for her older child. Her
prognosis is poor, and reunification appears doubtful.

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Also, Kelly would not leave Jedediah, who had abused S.J. in her presence. Jan

Lishman, a domestic-violence coordinator at the Texarkana Police Department, testified

that she had been monitoring communications between Kelly and Jedediah, who was in

jail, since June 2019. She said that there was a definite pattern of Jedediah having Kelly lie,

mislead, and say whatever DHS wants to hear in order to get the children back. In an email

to Kelly, Jedediah instructed her to “just play the game.” Lishman said that Kelly adamantly

refused to ever leave Jedediah. Even at the termination hearing, Kelly expressed her

confusion as to why DHS wanted her to leave Jedediah.

Finally, Kelly has an extensive history with DHS dating back to 2002 involving her

other children. A family-service worker who testified at the termination hearing said that

she did not know of any other services that could have been offered to Kelly that would

have made a difference. Under these facts, we cannot say that the trial court clearly erred in

finding that aggravated circumstances supported terminating Kelly’s parental rights.

B. Best-Interest Finding

As for best interest, Kelly challenges only the adoptability prong of the analysis. This

court has held that adoptability is but one factor that is considered when making a best-

interest determination. Renfro v. Ark. Dep’t of Human Servs., 2011 Ark. App. 419, 385

S.W.3d 285. Moreover, we have held that there is no requirement that every factor must

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

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

the children. Id.

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Lisa Forte, an adoption specialist, submitted an affidavit in which she stated that both

S.J. and A.T. are adoptable given favorable characteristics, such as their young ages and good

health. She testified at the termination hearing that a data-match search revealed 169

potential adoptive families. Forte said that she was trying to get the brothers adopted

together but that S.J.’s behavioral issues may cause a problem because he was currently in a

facility. She admitted that it would be more difficult to get S.J. adopted. She said that if a

therapist recommends that they be separated for adoption, she will change her whole plan

to look for families separately.

Kelly asserts that Forte did not indicate whether her data-match search included S.J.’s

specific behavioral and mental-health needs. She also states that Forte did not say whether

there was a family that would adopt a sibling group with those specific needs or whether

the siblings would be able to maintain contact with their older sister, K.P.

Although Kelly relies on Grant v. Arkansas Department of Human Services, 2010 Ark.

App. 636, 378 S.W.3d 227, that case is distinguishable in that the caseworker testified simply

that “all children are adoptable,” and there was no other evidence regarding adoptability.

Here, Forte testified to these children’s individual characteristics and admitted that finding

an adoptive family for S.J. will be more difficult. The Juvenile Code does not require “magic

words” or a “specific quantum” of evidence to support a trial court’s finding regarding

adoptability. Solee v. Ark. Dep’t of Human Servs., 2017 Ark. App. 640, 535 S.W.3d 687. It

merely requires that if an adoptability finding is made, then evidence must exist to support

it. Id. Evidence that adoptive parents have been found is not required, and neither is

evidence that proves the child will be adopted. Id. A case-worker’s testimony that a child is

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adoptable is sufficient to support an adoptability finding. Id. “Setting the bar higher would

unfairly punish children with special needs or developmental disabilities who need

permanency—especially if the behavior and development issues are a direct result of the

parent’s unfitness and inability to properly parent.” Solee, 2017 Ark. App. 640, at 8–9, 535

S.W.3d at 692–93. Moreover, the trial court must make an individual determination

whether termination is in each child’s best interest and cannot treat the children as an

amorphous group in which the best interest of one will meet the interests of all. Allen-Grace

v. Ark. Dep’t of Human Servs., 2019 Ark. App. 286, 577 S.W.3d 397.

There was sufficient evidence put forth through Forte’s testimony for the trial court

to have considered the likelihood that S.J. and A.T. will be adopted. In any event,

“[p]arental rights will not be enforced to the detriment or destruction of the health and

well-being of the child. Thus, parental rights must give way to the best interest of the child

when the natural parents seriously fail to provide reasonable care for their minor children.”

McElroy v. Ark. Dep’t of Human Servs., 2014 Ark. App. 117, at 6, 432 S.W.3d 109, 113–14.

We cannot say that the trial court clearly erred in finding that termination of Kelly’s parental

rights was in her children’s best interest.

Affirmed.

GLADWIN and WHITEAKER, JJ., agree.

Jennifer Oyler Olson, Arkansas Commission for Parent Counsel, for appellant.

Callie Corbyn, Office of Chief Counsel, for appellee.

Kimberly Boling Bibb, attorney ad litem for minor children.

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