Dowden v. Ark. Dep't of Human Servs.

Cite as 2016 Ark. App. 296

ARKANSAS COURT OF APPEALS
DIVISION I
No. CV-15-1070

CHANTELLE DOWDEN AND Opinion Delivered June 1, 2016
THOMAS MAYNARD
APPELLANTS APPEAL FROM THE CLAY
COUNTY CIRCUIT COURT,
V. WESTERN DISTRICT
[NO. WJV-2014-21]

ARKANSAS DEPARTMENT OF HONORABLE CINDY THYER,
HUMAN SERVICES AND MINOR JUDGE
CHILDREN J.M. AND L.M.
APPELLEES AFFIRMED

BART F. VIRDEN, Judge

Chantelle Dowden and Thomas Maynard appeal from the Clay County Circuit Court

order terminating their parental rights to their two minor children, J.M. (born 05/14/10) and

L.M. (born 09/04/13). On appeal, Dowden and Maynard contend that the circuit court

erred in terminating their parental rights because it did not properly consider their late

compliance with the case plan and court orders. Dowden and Maynard do not challenge the

statutory grounds for termination or the best-interest findings of the circuit court. We find

no error, and we affirm.

I. Facts

On July 17, 2014, an emergency order was entered placing J.M. and L.M. in the

custody of the Arkansas Department of Human Services (the Department) after the Corning

Police Department received a phone call reporting that J.M. had been observed outside the
Cite as 2016 Ark. App. 296

home without supervision for the second time in two days. A family service worker visited

the home and found it to be unsafe due to filthy conditions. The circuit court found that

there was probable cause to remove the children from the custody of their mother, Chantelle

Dowden, and that it was contrary to their welfare to be returned to the home. The father,

Thomas Maynard, was not living in the home at that time. Both parents were ordered to

complete background affidavits; cooperate with the Department; comply with the case plan;

obey all orders of the court; keep in contact with the Department; notify the Department of

any significant changes; participate in parenting classes; obtain clean, safe, stable housing;

abstain from drug use and submit to testing; and provide proof of prescription medication.

Dowden was ordered to submit to a psychological assessment, and Maynard was ordered to

pay $100 per week in child support. The goal was set as reunification, and both parents were

allowed weekly supervised visitation.

The Department was ordered to develop a case plan, provide services, and perform

home studies of any relatives interested in the children.

An adjudication hearing was set for August 29, 2014, though due to Dowden’s health

issues, the hearing was continued until October 23, 2014. In the adjudication and disposition

order that was entered the same day, the circuit court found that the Department had been

involved with the family for about a month before the emergency petition was filed after a

referral for inadequate supervision and guidance for appropriate housekeeping was made for

the family. The circuit court found that the services provided during this month did not

prevent the removal of the children from the home, because it was determined that the

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conditions of the home had not improved. The circuit court found the children to be

dependent-neglected because of environmental neglect and inadequate supervision. The

circuit court found that returning the children to the custody of the parent was contrary to

their health, safety, and welfare and that they should remain in the custody of the Department.

The stated goal was reunification, and the parents were ordered to comply with the orders

described in the emergency order. They were also ordered to keep the utilities turned on, and

Maynard was ordered to find and maintain stable employment sufficient to support the family.

Dowden was ordered to follow up with medical treatment, remain on her medication, and

follow her doctor’s instructions concerning physical therapy and rehabilitation. Maynard was

ordered to establish paternity.

On June 3, 2015, the circuit court held a permanency-planning hearing and entered

the permanency-planning order. In the order, the court found that adoption was appropriate

and that the Department should file a petition for termination of parental rights. The circuit

court found that Dowden and Maynard had only partially complied with the case plan.

Specifically, the circuit court found that they had obtained housing, but when the caseworker

visited the home in January and late February 2015, she found that it was still very dirty and

unsafe. Dowden and Maynard moved to a different home after those home visits. Since then,

the caseworker had attempted eighteen visits, but Dowden and Maynard had not been home.

The circuit court also found that Dowden had applied for SSI benefits, but her application was

still pending. The circuit court noted that Dowden had submitted to psychological testing,

but she had not completed parenting classes.

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The circuit court also made findings concerning the visitations. Specifically, the circuit

court found that Dowden had attended visitation and that she had done a better job of

connecting with her children during the last three visits; however, the court found that

Dowden was “inconsistent during visits.” During the April 9, 2015 visit at McDonald’s,

Dowden had threatened to not come to see J.M. again if the child continued to visit the

caseworker’s table during the visitation. Dowden had also threatened to spank J.M. if she did

not eat. The younger child had cried throughout the visit, and Dowden had screamed at

L.M., Maynard, and J.M. and expressed her belief that the children were not paying enough

attention to her. The visit had been cut short, and Dowden had followed the children and the

caseworker out to the parking lot, still yelling.

The court also noted that “the family-service worker has concerns that Ms. Dowden

is not able to care for the children without assistance. Ms. Dowden had not kept in contact

with the Department as previously ordered by the court.”

In the permanency-planning order, the circuit court made specific findings as to

Maynard’s partial compliance with the case plan. The circuit court found that Maynard had

completed psychological evaluation and parenting classes and had attended supervised

visitation, but that Maynard had not complied with the recommendations of the psychological

evaluation. The inability to conduct home visits was attributed to Maynard as well as Dowden

because he had, at some point during the pendency of the case, moved back in with Dowden.

The circuit court found that Maynard had not obtained stable employment, that he had not

been honest about having been fired from his last job, and that he had not produced proof of

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employment for previous jobs that he claimed to have had. On June 1, 2015, Maynard

produced proof of employment at Sollis Grain Bins that showed he had worked there since

April 17, 2015. The circuit court found that Maynard had also failed to stay in contact with

the Department.

The circuit court reduced child support to $80 a week, and the Department was

ordered to bring pictures of the family’s home to the next hearing. A termination hearing was

set for August 26, 2015.

The Department filed a petition to terminate parental rights on July 2, 2015. In its

petition, the Department asserted that termination was in the best interest of the children,

specifically asserting that the children were adoptable and that there was the potential for harm

if they were returned to their parents. In addition to the best-interest assertion, the

Department contended there were three statutory grounds in support of termination: (1) that

the children had been adjudicated dependent-neglected and out of the custody of both parents

for twelve months and that despite meaningful effort by the Department to rehabilitate the

parents and correct the conditions that led to removal, the conditions had not been remedied

by either parent; (2) that other factors or issues had arisen subsequent to the filing of the

original petition for dependency neglect that demonstrate that placement of the juvenile in

the custody of the parents would be contrary to the health, safety, or welfare of the juveniles

and that despite the offer of services, the parents had manifested the incapacity or indifference

to remedy the subsequent issues or rehabilitate the circumstances at issue; and (3) that there

were aggravated circumstances such that there was little likelihood of successful reunification.

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The termination hearing took place August 26, 2015. Department social worker

Brittney Howard testified that on July 17, 2014, she received the case from Greene County

and that she also received a hotline report that J.M. was outside by herself for the second time

in two days while her mother was indoors sleeping. The environmental neglect was

discovered when police investigated, and the children were removed from the home that day.

She testified that the smell inside the house was so bad that she and the police officer had to

immediately go back outside. Trash was piled everywhere, food and cigarette butts littered

the floor, and the utilities were shut off. Howard observed during removal that L.M. seemed

“limited in what she was able to do at her age.”

Melinda Graves, a caseworker with Clay County Department of Human Services, was

also there the day the children were removed from the home, and she testified to the same

environmental neglect. Graves testified that when she visited the home where Dowden was

living on January 5, 2015, there were dirty adult diapers all over the floor, cigarette butts

everywhere, and that cans and trash were scattered around. The odor in the home had not

improved. Graves testified that Dowden had stated that she was about to begin cleaning and

that Maynard helped her clean when he got home from work. Human waste was all over the

shower chair and bathtub. There was no furniture in any of the rooms except in the living

room, which contained a bare mattress so dirty that it was black. A bag of trash and dirty adult

diapers had been sitting next to an electric heater in the kitchen, which Graves unplugged.

An open-flamed heater in the living room also had trash bags and adult diapers piled near it.

Graves testified that she visited again on January 30, 2015, and the conditions were the

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same. During the visit, Dowden explained that they were going to move soon. Dowden also

informed Graves that when the children returned home, the older child would take care of

the younger child. Graves, after several failed attempts, performed another home visit on

February 27, 2015, and she testified that she found the conditions to be the same as before.

Graves testified that their paths crossed a few more times, but Dowden and Maynard

had been busy with doctor appointments and shopping for items for their new home, so home

inspections could not be performed at those times. On May 27, 2015, Graves visited the new

home. She noted that the porch was falling in and was unsafe and that it was still covered

with the trash and the trash bags of dirty adult diapers that had been there on the previous

attempted visits. Graves observed that the children’s rooms contained beds and garment racks

with clothes hung on them, and Dowden explained to Graves that her family had helped her

buy things for the kids. Graves testified that the recliner chair and the house had a strong odor

of human waste and cigarettes.

Graves visited the home again on June 23, 2015, and she testified that she had found

Dowden cleaning when she arrived. Graves noticed the smell of mold, but Dowden explained

that the house was just old. Graves testified that in June 2015, there was no sign that Maynard

was living in the home but that during a July visit there was some very dirty bedding on the

couch in the living room indicating that he was living there. The front porch had been torn

apart for repair but had not yet been fixed. The trash had been removed from inside the

home; however, the yard was still littered with nails, and two hot-water heaters were lying

around. The electrical outlets did not have covers, which had concerned Graves. She

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explained that the house was definitely better, but that “it seems as if they pick up items to

a point, then it goes back to what it was.”On cross-examination, Graves testified that cleaning

supplies and help with the cleaning had been offered to the parents but that they had refused

several times, saying they did not need help.

On the day of the termination hearing, Dowden brought Graves a letter showing that

she would receive $548 a month for SSI. Maynard had not brought current proof of income

with him. Graves stated that Maynard had given her proof of income before, but he had been

fired from that job, and he was dishonest about what had led to his termination. Graves

pointed out that Maynard could have completed the ordered psychological counseling while

he was unemployed, but he had not done so until much later. Graves testified that throughout

the case, she had set up appointments, and her assistant had tried to make contact with

Dowden and Maynard, but neither parent had worked toward complying with the case plan

during the first full year after removal.

Graves testified that the psychological exam on Maynard showed that he had a history

of anger and depression and that it had been determined that he needed psychotherapy.

Graves explained that Maynard had said that he would agree to counseling if it would help

get the kids back but that he had stated that counseling was unnecessary and that it would be

a hardship to try and schedule it.

Graves testified that Dowden still seemed to have problems adequately supervising her

children and that during the most recent visit Dowden had gotten up from the table and

walked away from the children, leaving them alone. Shortly after Dowden had left the area,

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the four-year-old child also got up from the table and left the one-year-old child by herself.

Graves testified that, in addition to this sort of behavior during visitation, Dowden routinely

packed up to leave visits after an hour because she was too tired to complete the full two-hour

visitation.

Graves testified that when the children had entered the Department’s care, L.M., who

had been one year old at the time, could not sit up, and J.M., who was then four years old,

had not been toilet trained. All of J.M.’s teeth had rotted and fallen out, and the condition

caused her to have to spit. By contrast, Graves testified that both children had been doing

extremely well in foster care and that J.M. was recovering from severe failure to thrive and

had begun kindergarten. Both children had received therapy and had stabilized within the last

year, and there was a family interested in adopting them.

Graves testified that even if the parents had cleaned up the home sooner, she did not

think the situation would change because she did not believe the parents had learned

anything.

Dowden testified at the hearing. She denied being exhausted by visits and testified that

she played with the children during visits and that she thought visitations were going well.

Dowden testified that she had cursed at one of the caseworkers because the caseworker had

lied about Maynard not living in the home with her. Dowden explained that Maynard’s

clothes were in a closet where the caseworker could have seen them, and the caseworker had

been trying to “blackball” them. Dowden testified about all the structural repairs they had

made to the home: patching, redoing floors, fixing water damage, painting, and installing a

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laundry room on the back porch. She also testified that she had been cleaning the bathroom

with Pine Sol every other day. The girls’ rooms had been furnished, and she explained that

Maynard’s bedding was dirty because he had oily hair.

Dowden also testified that they had installed safety gates in their home, that they had

removed all the trash and debris from their yard, and that she had begun smoking exclusively

outdoors. Dowden presented pictures of the progress they had made within the last two

weeks.

Dowden denied that the Department had offered help with the cleaning, and she

testified that there had never been any indication that a caseworker had been by the house

while they were gone. Dowden stated that she had started counseling and had finished

parenting classes on July 21, 2015. Dowden explained that the delay in seeking counseling was

because they had been under the impression that they had to go all the way to Jonesboro for

counseling, and they did not realize they could get counseling in Corning.

Dowden stated that she had worked from “sun up to sun down” over the last couple

of weeks to get everything ready for the girls to come home. She explained that the adult-

diaper issue had been resolved and that she had been very weak and unable to clean properly

when she had gotten out of the nursing home. Dowden explained that the person from

whom she rented the house had left things in the home, and the city had not brought them

a trash bin. Because animals might have gotten into the trash if she put it outside, they had

let it pile up indoors. She disagreed that she and Maynard had argued in front of the children,

and that if anyone said that, it was untrue. Dowden stated she did not like the caseworker and

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admitted having cursed at her more than once.

Dowden recounted the April 9, 2015 visit at McDonald’s. She testified that her eldest

child had not been paying attention to her, and it had hurt her feelings. Dowden testified that

she realized that she had not behaved properly, but she explained that the child had “pushed

her buttons” and that the visit was “ending anyway.” Dowden also contended that it was her

opinion that J.M.’s hyperactivity had contributed to the child’s failure-to-thrive diagnosis.

Maynard testified as well. He testified that he also thought visitations with the children

had gone well. Maynard testified that he did not tell the psychologist that he and Dowden

argued but that they had frustrations over money; now that Dowden was getting SSI, they

had enough money. Maynard also testified that he was under the impression that counseling

could only be done in Jonesboro, and he had not understood that the Department would help

with transportation. He testified that he had been working twelve- and fourteen-hour shifts

and that fitting counseling and cleaning into his schedule had been difficult.

The circuit court stated from the bench that it thought the parents had minimized the

issues and that they did not realize or admit that the conditions of the home had been serious.

The circuit court noted that the improvements in the environmental neglect had occurred in

the last few weeks, that Dowden had not completed parenting classes until July, and that

neither parent had followed through with the psychological-evaluation recommendations.

The circuit court stated both children were adoptable and that there was potential harm in

returning them to their parents.

In the termination order, the circuit court found all three statutory grounds for

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termination that were alleged in the petition for termination.

The circuit court also noted in the order that the parents did not seem to fully

understand that the conditions had been dangerous, that they had minimized the problems,

that they had refused help with cleaning the house and that the progress made was mostly “on

the eve of termination.” The court commended Graves on her diligence in bringing parenting

classes to Dowden while she had been in the nursing home, and the circuit court noted that

Dowden had not pursued parenting classes on her own until late July, right before

termination. The circuit court found that, because Dowden sought the parenting classes so

late in the case, she had been unable to demonstrate the skills she may have learned. The

circuit court noted that the parents were mobile and able to leave the home when they

wanted to, yet they did not use their mobility or their time to work on the case plan until

very recently.

The circuit court found that the parents had submitted to the psychological evaluations

in a timely manner; however, their compliance with the recommendations had not occurred

until after the permanency-planning hearing. The circuit court found that Maynard went in

for “assessment” pursuant to the psychological evaluation on July 23, 2015, and that Dowden

“did not follow through with the recommendations until July 31, 2015.” The court found

that neither parent had maintained contact with the Department and that Maynard had not

provided proof of income regularly.

The circuit court found that Graves was a credible witness and that potential harm

could result to the children if they were returned to their parents based on parental instability,

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their inability to care for the children, and because of the long history of environmental

neglect. The court also found that J.M. and L.M. were likely to be adopted. The parents filed

a timely notice of appeal.

II. Point on Appeal

For their only point on appeal, Dowden and Maynard argue that the circuit court erred

in granting the petition to terminate their parental rights because, even though their

compliance was late in the case, they had substantially complied with the case plan and court

orders, and the circuit court did not properly consider their efforts.1

III. Standard of Review and Applicable Law

The standard of review is de novo, but the appellate court will not reverse unless the

circuit court’s findings are clearly erroneous. See Judkins v. Duvall, 97 Ark. App. 260, 248

S.W.3d 492 (2007). The appellate court, giving due regard to the circuit court’s opportunity

to judge the credibility of the witnesses, will not reverse the circuit court’s ruling in a

dependency-neglect case unless the ruling was clearly erroneous. Anderson v. Ark. Dep’t of

Human Servs., 2011 Ark. App. 522, at 4–5, 385 S.W.3d 367, 369–70. A finding is clearly

1
Termination of parental rights is a two-step process. Krantz v. Ark. Dep’t of Human
Servs., 2011 Ark. 185, at 4, 380 S.W.3d 927, 929. The first step is proof of a statutory ground.
Ark. Code Ann. § 9-27-341(b)(3) (Repl. 2009). The second step requires consideration of the
likelihood that the juveniles will be adopted and the potential harm caused by returning the
custody of the children to Dowden and Maynard. See Ark. Code Ann. § 9-27-341(b)(3)(A).
The parents’ failure to challenge these grounds abandons any challenge on appeal. Anderson
v. Ark. Dep’t of Human Servs., 96 Ark. App. 395, 409, 242 S.W.3d 305, 316–17. Because
Maynard and Dowden do not challenge the statutory grounds or best-interest findings in
support of the termination order, we need not address those issues.

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erroneous when, although there is evidence to support it, the reviewing court 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 to judge the credibility of the witnesses. Dinkins v. Ark. Dep’t of Human Servs., 344 Ark.

207, 40 S.W.3d 286 (2001).

A parent’s overtures toward participating in the case plan or obeying court orders

following the permanency-planning hearing will not preclude termination. The court shall

rely on the record of the parent’s compliance in the entire dependency-neglect case and

evidence presented at the termination hearing in making its decision whether it is in the

juvenile’s best interest to terminate parental rights. See Ark. Code Ann. §

9-27-341(a)(4)(A)–(B). Moreover, partial compliance with the case plan does not preclude

termination. Davis v. Ark. Dep’t of Human Servs., 2009 Ark. App. 815, at 11, 370 S.W.3d

283, 288. Even full compliance with the case plan is not determinative; the issue is whether

the parent has become a stable, safe parent able to care for his or her child. Ford v. Ark. Dep’t

of Human Servs., 2014 Ark. App. 226, at 3, 434 S.W.3d 378, 381.

A child’s need for permanency and stability may override a parent’s request for

additional time to improve the parent’s circumstances. Dozier v. Ark. Dep’t of Human Servs.,

2010 Ark. App. 17, at 9, 372 S.W.3d 849, 854. A parent’s past behavior is often a good

indicator of future behavior. Stephens v. Ark. Dep’t of Human Servs., 2013 Ark. App. 249, at

8, 427 S.W.3d 160, 164.

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IV. Analysis and Conclusion

Dowden and Maynard argue that they made significant improvements towards

compliance with the case plan during the three months prior to the termination, and the

circuit court erred by not taking their late compliance into consideration. We disagree.

Arkansas Code Annotated section 9-27-341(a)(4)(A) expressly provides that a parent’s

overtures toward complying with the case plan and circuit court orders that occur only after

the permanency-planning hearing are insufficient to defeat the termination of parental rights.

In the present case, it is clear that the parents’ efforts to rectify the environmental conditions

that led to the removal of their children from Dowden’s custody occurred after the June 3,

2015 hearing. The parents also failed to comply with the circuit court’s order concerning

parenting classes by not completing them until July 21, 2015, about six weeks after the

permanency-planning hearing and order. The court specifically found that neither parent

complied with the recommendations stemming from the psychological evaluation in a timely

fashion.

Furthermore, the circuit court did, in fact, specifically consider the entire history of the

case, including the events after the permanency-planning hearing on June 3, 2015, and after

the petition for termination had been filed on July 2, 2015. In the permanency-planning

order, the circuit court asked the Department to bring photographs of the conditions of the

home, which were presented at the termination hearing. The circuit court noted that

Dowden had recently completed parenting classes, but that both parents had failed to comply

with the recommendations from the psychological evaluations. The circuit court expressed

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the concern that Dowden and Maynard had seemed to minimize their issues, specifically, they

had not grasped the severity of the environmental neglect.

The circuit court did not weigh the evidence in favor of Dowden and Maynard;

however, the circuit court weighing the evidence differently than Dowden and Maynard

wanted it weighed is not reversible error. See Cox v. Ark. Dep’t of Human Servs., 2015 Ark.

App. 202, at 11, 462 S.W.3d 670, 677. To reverse on this basis would require this court to

act as a super fact-finder or second guess the circuit court’s credibility determination, which

is not our function. Id.; Lynch v. Ark. Dep’t of Human Servs., 2012 Ark. App. 149.

Arkansas law supports the circuit court’s consideration of the evidence and testimony

concerning Dowden and Maynard’s history throughout the entire case in its determination

that termination was appropriate. We find no error, and we affirm.

Affirmed.

HARRISON and KINARD, JJ., agree.

Terry Goodwin Jones, for appellants.

Jerald A. Sharum, Office of Chief Counsel, for appellee.

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

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