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

679 S.W.3d 437

Whitney BEAVERS, Appellant

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

No. CV-23-309

Court of Appeals of Arkansas, DIVISION II.

Opinion Delivered November 8, 2023

APPEAL FROM THE LOGAN COUNTY CIRCUIT COURT, NORTHERN DISTRICT [NO. 42PJV-21-34], HONORABLE TERRY SULLIVAN, JUDGE

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

Ellen K. Howard, Jonesboro, Ark. Dep’t of Human Services, Office of Chief Counsel, for appellee.

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

RAYMOND R. ABRAMSON, Judge

₁Whitney Beavers ("Whitney") appeals the Logan County Circuit Court's order terminating her parental rights to her children, Minor Child 1 (MC1, born in August 2013) and Minor Child 2 (MC2, born in July 2014). On appeal, Whitney argues that the circuit court erred by finding that any statutory ground pled supported termination or that termination was in the children’s best interest. We affirm.

The present case began on October 11, 2021, when the Arkansas Department of Human Services (DHS) filed a petition for emergency custody and dependency-neglect after it placed a hold on MC1, MC2, and a third child (MC3, born in July 2008), whose custody ₂is not at issue in this appeal.¹ The affidavit accompanying the petition outlined a history of abuse allegations dating back to 2016 with each juvenile as an alleged victim and both Whitney and Wayland Beavers (Wayland),² the putative father of MC1 and MC2, listed as alleged abusers. DHS had exercised an emergency hold on the children following a home visit on October 6.

The accompanying affidavit went on to describe that DHS had opened a protective-services case on the family due to a true finding of inadequate supervision on August 11, 2021, when it was reported that then seven-year-old MC2 had gotten out of the home and traveled several miles on her own to the local Dollar General on more than one occasion. In September, a new allegation of sexual abuse was made with MC3 as the alleged victim and Wayland as the alleged abuser. DHS put a protection plan into place prescribing no contact between Wayland and MC3 and no unsupervised contact with Wayland and his own children, MC1 and MC2. DHS was contacted on October 5 due to concerns that the protection plan was not being followed and again on October 6 regarding concerns that the children were not at school.

₃Following the October 6 home visit, DHS exercised an emergency hold on all three children. The DHS representative described environmental concerns related to the home including messiness, a "strong, foul odor," and a hole in the floor covered by plywood as well as concerns that MC1 had ingested an alcoholic Jell-O shot that he purportedly obtained from Whitney’s bedroom closet while she was sleeping. The affidavit stated that the children were removed from Whitney's custody "because circumstances or conditions of Whitney Beavers present an immediate danger to the[ir] health or physical well-being" and observed that the "[c]aretaker has not, cannot, or will not provide supervision necessary to protect children from potentially dangerous harm." On November 30, the court found that probable cause existed such that the children should remain in DHS custody.

All three children were adjudicated dependent-neglected in an order entered January 7, 2022. The court’s finding was based on the parents’ stipulation "to dependency-neglect based on inadequate supervision and environmental issues." "Specifically," the circuit court went on to state that "the allegations in the petition and accompanying affidavit are substantiated by the proof." The goal of the case was set as reunification with a concurrent goal of adoption.

The court held two review hearings: on March 2, followed by an order of March 10; and on June 15, followed by an order of June 28. At the March hearing, the court found that Whitney had "minimally complied with the case plan and orders of the court. Specifically, the parents need to step up. Both parents appear to have minimal employment." The court ordered a hair-follicle test and psychological evaluation for Whitney. At the June ₄hearing, the court found that "Whitney Beavers has mostly complied with the case plan and orders of the Court. Specifically, she is working the case plan and cooperating with the Department. However, she does not have any appropriate house at this time."

On November 1, the children’s maternal grandmother and her spouse filed a petition to adopt the children. Subsequently, on December 27, the maternal grandparents alternatively sought a guardianship of the children.

Following a continuance, the circuit court held a permanency-planning hearing on November 2, memorialized in an order entered December 13. The court found that

[t]he parents, Whitney Beavers and Wayland Beavers, progress in this case is going backwards from previous hearings. Specifically, the Court finds we are at 13 months into this case and are not making progress toward reunification. There continues to be a drug issue with Whitney Beavers and Wayland Beavers. Both parents have tested positive for meth, and both parents deny any use of meth or amphetamines. Whitney Beavers has lost her job.

The parent, Whitney Beavers, had made inappropriate statements to the juveniles regarding the return of the juveniles to her custody. The Department has discretion to end visits if the parents are inappropriate.

The court found that the goal of the case should be changed to adoption following termination of parental rights.

On December 1, DHS filed a petition to terminate Whitney’s and Wayland’s rights to MC1 and MC2. The petition pled failure to remedy, subsequent factors, and aggravated circumstances. The termination hearing was held on January 3, 2023, and in an order entered February 2, the circuit court terminated Whitney’s parental rights, citing all three grounds. At the hearing, the court received testimony from Whitney, Wayland, and Hannah ₅Wilkinson (Wilkinson), a family service worker at Logan County Division of Children and Family Services assigned to the Beavers case. Wilkinson testified that Whitney was permitted unsupervised visits at one time but that supervised visits were ordered again after MC1 reported to his counselor that Whitney had fallen asleep on the couch during the visit and the kids were outside playing. Wilkinson also testified that Whitney had missed some recent visits with the children and that, in December, she had not shown for three drug-related counseling sessions and was thirty minutes late to a fourth, which was therefore marked as incomplete. Wilkinson testified that Whitney’s March 2022 hair-follicle test came back positive for methamphetamine and a November 29 test came back positive for methamphetamine and amphetamine but that she had three negative tests in December. Wilkinson admitted that Whitney had not been made aware of a DHS drug assessment that recommended she attend counseling, so it would have been hard for Whitney to accept a recommendation for drug counseling when she was not made aware of it.

The court further held that termination was in the best interest of the juveniles on the basis of its findings that the juveniles are adoptable and that they would likely be subjected to potential harm if parental rights were not terminated. This appeal followed.

[1–3] Termination-of-parental-rights cases are reviewed de novo. E.g., L.W. v. Ark. Dep’t of Hum. Servs., 2011 Ark. App. 44, at 8, 380 S.W.3d 489, 494. Appellate courts will not reverse a termination order unless the findings were clearly erroneous, meaning "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. at 9, 380 S.W.3d at 495. Further, ₆appellate courts give due regard to the circuit court’s ability to assess a witness’s credibility. Id., 380 S.W.3d at 494.

[4–6] In order to terminate parental rights, a circuit court must find by clear and convincing evidence that at least one ground for termination exists and that termination is in the juvenile’s best interest. Id. at 9-10, 380 S.W.3d at 494-95. "Clear and convincing evidence is that degree of proof that will produce in the fact-finder a firm conviction as to the allegation sought to be established." Watkins v. Ark. Dep’t of Hum. Servs., 2021 Ark. App. 55, at 4, 2021 WL 476451. Because DHS is required to prove only one ground for termination, an appellate court need not consider whether each of the statutory grounds cited for termination was independently appropriate. See Martin v. Ark. Dep’t of Hum. Servs., 2017 Ark. 115, 515 S.W.3d 599; see also Calloway v. Ark. Dep’t of Hum. Servs., 2022 Ark. App. 192, at 10, 644 S.W.3d 262, 267 ("We have repeatedly held that the Department need only prove one ground for termination, so we must affirm if the evidence supports at least one of the statutory grounds at issue in this case.").

For her first argument on appeal, Whitney argues that DHS failed to prove any of the statutory grounds pled in the termination petition. The court granted DHS’s termination petition on the grounds of failure to remedy, subsequent factors, and aggravated circumstances. In response, DHS and minor children argue that sufficient evidence supported the aggravated-circumstances and subsequent-factors grounds. Because DHS and the minor children do not address the failure-to-remedy ground, we will not address it on ₇appeal.³ Moreover, we need only confirm one of these grounds in order to affirm that the circuit court properly terminated Whitney’s parental rights.

[7–9] Aggravated circumstances exist when a determination has been made by a court that there is little likelihood that additional services to the family will result in successful reunification. Ark. Code Ann. § 9-27-341(b)(3)(B)(ix)(a)(3) (Supp. 2023); see also Calloway, 2022 Ark. App. 192, at 10, 044 S.W.3d at 267. This court...