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

2021 Ark. App. 460

637 S.W.3d 311

Staci and Timothy ASLAKSON, Appellants

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

No. CV-21-206

Court of Appeals of Arkansas, DIVISION I.

Opinion Delivered November 17, 2021

Dusti Standridge, for separate appellant Staci Aslakson.

Leah Lanford, Arkansas Commission for Parent Counsel, for separate appellant Timothy Aslakson.

Andrew Firth, Ark. Dep't of Human Services, Office of Chief Counsel, for appellee.

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

PHILLIP T. WHITEAKER, Judge

Staci and Timothy Aslakson appeal a Conway County Circuit Court order terminating their parental rights to their three children, KA, BA, and AA, raising a challenge to the trial court's best-interest finding. Finding no error, we affirm.

I. Factual Background and Procedural History

Staci and Timothy Aslakson are the biological parents of KA, BA, and AA. In July 2019, the Conway County Probation and Parole Office conducted a home visit at Staci's residence. They found drugs and drug paraphernalia within the home and within the reach of the children.¹ Staci was arrested. BA and AA were present at the time of the search and arrest. The Arkansas Department of Human Services (Department) was contacted and conducted a drug screen on Staci. She tested positive for methamphetamine, amphetamine, benzodiazepine, oxycodone, and opiates. As a result of Staci's arrest and drug screen, the Department exercised a seventy-two-hour hold on the children and initiated a dependency-neglect proceeding.²

The court adjudicated the children dependent-neglected due to Staci's failure to provide a safe and appropriate home for the children.³ The court found both Staci and Timothy unfit as a result of their use of controlled substances, which the court found seriously affected their ability to supervise, protect, or care for the children. The court set the goal of the case as reunification and established supervised visitation for both parents.

In a subsequent review hearing, the court continued custody with the Department, finding the Department had complied with the case plan and the orders of the court. Concerning Staci, the court noted that she had not been compliant with the case plan. She had not visited with the children and had failed to comply with her psychological evaluation and her drug-and-alcohol assessment. Concerning Timothy, the court noted that he had canceled several visitations, did not have reliable transportation, and had not provided any proof of income. Moreover, Timothy admitted that he was living with a significant other who had a history with the Department and that his current home was not appropriate. Concerning the children, the court determined that the Indian Child Welfare Act (ICWA) applied, that the Suquamish tribe in Washington had filed for intervention, and that the Department had made active efforts to reunify the family.

The court held a permanency-planning hearing in June 2020 and changed the goal of the plan to adoption and authorized the Department to file a petition for the termination of parental rights. In reaching this goal change, the court found that the Department had made reasonable efforts to finalize a permanency plan and that Staci and Timothy had not complied with the case plan and orders of the court.

Staci had not attended her September 2019 drug-and-alcohol assessment; had not attended her October 2019 psychological evaluation; and had not completed any drug screens. She had not had stable employment or housing and was currently incarcerated in the Pope County Detention Center.

Timothy had been referred to counseling but was discharged because he never scheduled his intake. Although he completed his psychological evaluation, he did not attend his drug-and-alcohol assessment. The court noted that the Department had not been able to get any random drug screens or conduct home visits and that Timothy had not visited his children. Instead, he would confirm visitation but then fail to show up or answer the Department's calls.

The court then found that the Suquamish Tribe was not an intervenor and ordered that it be removed from the style of the case. However, the Department was ordered to notify the Tribe and verify the status of its intent to intervene. The court also ordered the Department to conduct a home study on the paternal grandmother and noted that the alcoholism of the grandmother's husband should be addressed in the study.

In August 2020, the Department filed a petition for termination of parental rights alleging six grounds for termination.⁴ As to the best interest of the children, the Department alleged that the children are highly adoptable and that return to the parents’ custody could potentially harm the children because neither parent had demonstrated an ability to care for the children or keep them safe.

The court conducted a termination hearing over the course of two days. After hearing all the evidence, the court entered an order terminating the parental rights of Staci and Timothy. The order found that the Department had proved all six grounds for termination. The order further stated that termination was in the best interest of the children; that the children are adoptable; and that the children would be subject to potential harm if returned to Staci and Timothy's care. Additionally, the court found beyond a reasonable doubt that, in light of the qualified expert testimony of Carol Armstrong, the ICWA expert, the Department had made active efforts to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that continued custody of the parents or Indian custodian would result in serious emotional or physical harm to the children. Staci and Timothy appeal the termination order, challenging the court's best-interest finding.

II. Standard of Review

We review termination-of-parental-rights cases de novo. Hune v. Ark. Dep't of Hum. Servs. , 2010 Ark. App. 543, 2010 WL 2612681. In order to terminate parental rights, the Department must prove that at least one statutory ground exists in addition to a finding that it is in the child's best interest to terminate parental rights. Ark. Code Ann. § 9-27-341 (Supp. 2021); Kohlman v. Ark. Dep't of Hum. Servs. , 2018 Ark. App. 164, 544 S.W.3d 595. The Arkansas Juvenile Code sets forth two factors that must be considered in determining best interest: the likelihood of adoption and potential harm to the child if returned to the parents’ custody. Ark. Code Ann. § 9-27-341(b)(3)(A)(i) & (ii). Potential harm must be viewed in a forward-looking manner and in broad terms, including the harm the child suffers from the lack of stability of a permanent home. Wallace v. Ark. Dep't of Hum. Servs. , 2015 Ark. App. 481, at 12, 470 S.W.3d 286, 293.

Here, the trial court determined that the ICWA was applicable to the parties. When the ICWA applies, the trial court must adhere to a more heightened standard. According to the ICWA, the party seeking to terminate parental rights shall satisfy the circuit court that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful. 25 U.S.C. § 1912(d). Moreover, the ICWA sets forth more stringent standards for termination of parental rights: testimony of qualified expert witnesses and evidence beyond a reasonable doubt that the continued custody of the child by the parent is likely to result in serious emotional or physical damage to the child. 25 U.S.C. § 1912(f).

Despite this heightened standard in the trial court, our court's review is still de novo, and we will not reverse the trial court's ruling unless its findings are clearly erroneous. Holmes v. Ark. Dep't of Hum. Servs. , 2016 Ark. App. 495, 505 S.W.3d 730. 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. Sharks v. Ark. Dep't of Hum. Servs. , 2016 Ark. App. 435, 502 S.W.3d 569. In determining whether a finding is clearly erroneous, the appellate court gives due deference to the opportunity of the trial court to judge the credibility of witnesses. Bryant v. Ark. Dep't of Hum. Servs. , 2018 Ark. App. 375, 554 S.W.3d 295.

III. Analysis

While both parents challenge the termination order, neither Staci nor Timothy challenge the statutory grounds the trial court relied on to terminate their parental rights.⁵ Therefore, both have waived any challenge relating to the statutory grounds. Benedict v. Ark. Dep't of Hum. Servs. , 96 Ark. App. 395, 409, 242 S.W.3d 305, 316–17 (2006).

Here, both parents challenge the trial court's best-interest finding. However, they do not directly attack any of the court's findings regarding potential harm or adoptability. Instead, both parents contend that the best-interest determination should be reversed because the court failed to consider relative placement as a less restrictive alternative to termination.

In its termination order, the circuit court found that all three children are adoptable and that the absence of a safe environment for the children created the likelihood of potential harm. Because neither Staci nor Timothy challenges the sufficiency of the evidence supporting the statutory grounds, potential harm, or adoptability, this court must affirm these findings. Benedict , supra.

Turning now to their specific argument, both Staci and Timothy claim that Timothy's sister, Rachel Day (Pineda), was a possible placement for the children. Staci claims that the Department had a duty to locate potential family members for placement but did not do so. Timothy claims that termination was not in the children's best interest because the children were not living in continued uncertainty since they need only await the completion of the ICPC process initiated by...