Alexander v. Ark. Dep't of Hum. Serv.

679 S.W.3d 450

2023 Ark. App. 536

Jennifer ALEXANDER, Appellant

v.ARKANSAS DEPARTMENT OF HUMAN SERVICES and Minor Child, Appellees

No. CV-23-359

Court of Appeals of Arkansas, DIVISION II.

Opinion Delivered November 15, 2023

APPEAL FROM THE CLARK COUNTY CIRCUIT COURT [NO. 10JV-21-95], HONORABLE RALPH WILSON, JR., JUDGE

Tabitha McNulty, Arkansas Commission for Parent Counsel, for appellant.

Kaylee Wedgeworth, Ark. Dep’t of Human Services, Office of Chief Counsel, for appellee.

Dana McClain, Little Rock, attorney ad litem for minor child.

WAYMOND M. BROWN, Judge

₁Appellant Jennifer Alexander appeals the March 17, 2023 order of the Clark County Circuit Court terminating her parental rights to her daughter, Minor Child (MC).¹ She contends that the circuit court erred by finding that termination was in MC’s best interest. We affirm.

[1, 2] Appellant does not challenge the circuit court’s finding of statutory grounds for termination; thus, any such challenge is waived.² She also fails to challenge the circuit court’s findings regarding adoptability or potential ham within its best-interest analysis. Therefore, ₂we need not address those findings either.³ Appellant’s argument focuses solely on relative placement as part of the best-interest analysis. Accordingly, only a brief recitation of the facts is warranted.

MC was removed from appellant’s custody and placed in the custody of the Arkansas Department of Human Services (DHS) on September 4, 2021, when appellant was arrested for several drug offenses while driving under the influence of drugs. MC, who was one year old, was in the vehicle with appellant, unrestrained. Appellant also was charged with endangering the welfare of a minor and having no child restraint. MC was adjudicated dependent-neglected by an agreed order, due to neglect and parental unfitness. During the pendency of the case, appellant only partially complied, tested positive for drugs after completing inpatient treatment, and had at least four other arrests. Appellant was also intimately involved with an indi- vidual who had been found to be a detrimental influence on her.

The termination hearing took place on February 6, 2023.⁴ Laura Mergele, the supervisor for the Clark County Department of Children and Family Services, testified that there was mention of an Interstate Compact on the Placement of Children (ICPC) study being conducted on Elizabeth Smith, MC’s grandmother who lives in Tennessee, in a hearing that took place in the summer of 2022. She acknowledged that the ICPC package ₃was not sent to the coordinator until January 26, 2023. She was shown what was purported to be an email from appellant’s caseworker, La-Royce Browning, in July 2022 indicating that Smith’s information had been provided to the ICPC coordinator. A contact from the Children’s Reporting and Information System (CHRIS), an electronic documentation system used throughout the state, showed that Browning had noted in an August hearing that DHS "testified that an ICPC packet will be completed to consider placement with the grandmother." Mergele stated that she believed Smith was present at the August hearing. Another contact from CHRIS on September 27 indicated that the ICPC had been submitted. Mergele testified that she submitted the ICPC packet to the coordinator at the end of January once Smith personally contacted her about it. There was also an entry in CHRIS on January 17, 2023, stating that Smith had contacted Julie Rankin concerning Smith’s grandchildren and that Smith had talked to someone about six months ago and had even been to Arkansas for a hearing but had not been able to contact anyone and would like to be considered for placement. Mergele stated that she had no idea how long it would take Tennessee to process an ICPC.

On cross-examination by appellant’s attorney, Mergele testified that MC and her brother, Minor Boy (MB), are in the same foster placement and are bound to each other.⁵ She opined that it would be detrimental for them to be separated. She stated that a CHRIS ₄entry on December 12, 2022, indicated that the foster parents wanted to adopt only one child, not both, and that permanency of the children needed to be addressed.

On cross-examination by the ad litem, Mergele testified that the foster parents have maintained MB in their home despite his significant behavioral issues. She said that they had even sought training for themselves and MB and sought intensive counseling services for MB. Mergele was asked to read a portion of appellant’s psychological evaluation, and she read the following:

Jennifer stated that she was forced to forgive him, her father. Her mother is notably angry with Jennifer for having her father convicted for three years. Jennifer notes that her relationship with her mother has always been poor. Jennifer desperately wants her mother’s attention and affection, blaming her mother for shoving me to where I’m at now, basically giving Jennifer away to her husband whom she married at 18. Jennifer claims that her mother sold her on two different occasions, at seven and nine, for drugs and alcohol.

Mergele agreed that the evaluation contained many concerning statements about appellant’s childhood. She also stated that if any of the statements in the evaluation were true, she had health and safety con- cerns as well as concerns about the appropriateness of the proposed placement with Smith.

Sandra Marfoglio-Hinton, the adoption specialist, testified that the foster parents had not decided one way or the other about adopting MB.

Appellant testified that she and her mom, Smith, got "really close, finally." She said that it had been hard her whole life due to Smith’s having six children and appellant being the only girl. She stated that "over this period of time that I got in contact with my mom, she has been in my life, she has been here supporting me, and been here, and we’ve gotten ₅really close. First time ever we’re very close, and I’m very happy for that." Appellant said that despite all the things she said about her mom in the psychological report, she believes that Smith is a good placement for her children. She said that the things she said about Smith were not true and that she now respects Smith and sees Smith in a whole different way.

On cross-examination, appellant stated that she had not seen Smith until appellant had MB and reached out to Smith. She said that she had worked out the feelings she had toward Smith, and they were able to talk about things. She stated that having Smith in her life is a blessing. She denied ever saying that she did not want her children placed with Smith. Appellant admitted that she reported that Smith was verbally and psychologically abusive, and that was what she believed growing up based on how she was treated. However, she stated that she no longer believes that. She said that as a mother, she is now able to see things from Smith’s point of view and understand what Smith was going through. She stated that it seemed like everything was against her, but she is now able to "go through and process things way better."

On cross-examination by the ad litem, appellant denied that Smith had sold her on two separate occasions. She stated that she got it mixed up and that it was actually her husband, not her mother, who had sold her.

Smith testified that she resides in Hollow Rock, Tennessee. She stated that she talked to Browning when she first found out about MC. She said that she talked to Browning again about a home study when MB was placed in DHS custody because she wanted to have the ₆children placed with her. She said that she never heard anything from Browning about the home study. She testified that she had given Browning all the information needed. She said that she had spoken with Mergele off and on since June and that she gave Mergele the information for the home study about a month before the hearing. She stated that she did not contact anyone to ask why she had not heard anything about the home study. She said that she left Browning messages and she even tried to visit with MC, but she could not get anything done. She stated that she contacted Julie Rankin, and Rankin told her that that she could not do anything about Browning, but Rankin "could only work from now on." Smith stated that she wanted both MC and MB placed with her. She said that she lives in a four-bedroom, two-bathroom home with her husband. She testified that she has a good relationship with appellant but admitted that there was a time when they did not get along too well. She stated that she and appellant have talked about their problems and have resolved them in the past six months or so. She said that she contacted Tennessee’s office two days prior and was told that Tennessee had not gotten the paperwork for the home study yet.

On cross-examination, Smith testified that she learned that MC was in DHS custody before MB was also placed in DHS custody. She admitted that MC had been in foster care for a while before appellant told her about it. Smith denied that she failed to protect appellant from sexual assault by appellant's father, Smith’s then husband. She stated that she immediately removed appellant from the home when she found out. She denied that she made appellant forgive her father or that she was angry with appellant for having her ₇father convicted. Smith also denied having relationships with various men when appellant was young. She admitted that she had drunk a lot after the situation with appellant and her father but denied currently having a problem with alcohol or drugs.

On cross-examination by the ad litem, Smith testified that she had last seen MB in person in July 2022 when appellant came to her home with him and stayed overnight. She said that she now visits him via FaceTime or some other video chat. She initially stated that it had been three years since she had last seen MC, but she changed it to two and a half years when she was informed that MC had...