Coulter v. Minor Child

2021 Ark. App. 398

636 S.W.3d 377

Alexandra COULTER ; Gregory McCuin, Jr.; and Arkansas Department of Human Services, Appellants

v.MINOR CHILD, Appellee

No. CV-21-142

Court of Appeals of Arkansas, DIVISION I.

Opinion Delivered October 20, 2021

James & Streit, by: Johathan R. Streit, for separate appellant Alexandra Coulter.

Jennifer Oyler Olson, Arkansas Commission for Parent Counsel, for separate appellant Gregory McCuin, Jr.

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

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

RITA W. GRUBER, Judge

Appellants Alexandra Coulter (Coulter), Gregory McCuin (McCuin), and the Arkansas Department of Human Services (DHS) appeal from an order of the Pulaski County Circuit Court terminating Coulter's and McCuin's parental rights to GM (born December 2, 2015). In separate briefs, appellants argue that the court erred in not considering the guardianship petition filed by DHS prior to the attorney ad litem's petition to terminate parental rights and that the court's best-interest finding is clearly erroneous because it failed to consider or address a less-restrictive alternative to termination. McCuin also challenges the potential-harm finding within the court's best-interest determination. We affirm.

I. Facts and Procedural History

On May 9, 2019, DHS filed a petition for emergency custody and dependency-neglect of three-year-old GM. The supporting affidavit of the family-service worker provided that on May 1, 2019, DHS exercised emergency custody of GM after receiving a report of inadequate supervision, failure to protect, and environmental neglect regarding five-month-old MM and GM. Police had been called to the home, where MM was found unresponsive. MM could not be revived and was pronounced dead on the scene. Coulter reported that MM had been having breathing problems the night before but that she did not take her to the emergency room. Coulter woke up around 4:45 a.m. and found MM not breathing. The affidavit stated that GM was removed from the physical custody of Coulter, indicating that the living conditions were hazardous and immediately threatening to GM and that Coulter's substance abuse seriously affected her ability to supervise, care for, and protect GM, who is autistic. Gregory McCuin, Sr. (the grandfather), GM's paternal grandfather, was identified in the affidavit as a provisional placement.

An investigator with the Crimes Against Children Division of the Arkansas State Police also provided a supporting affidavit. It stated that the bedroom where the family slept had a queen-sized mattress on the floor, which had no sheets and was "filthy with old stains." There was a bouncy seat beside the mattress. Drugs and drug paraphernalia were found in the bedroom, which were sent to the crime lab for testing. The affidavit indicated that Coulter advised that she would test positive for Klonopin /Xanax (benzodiazepine) and Suboxone (buprenorphine ). In addition to those drugs, Coulter tested positive for methamphetamine and amphetamines and admitted to snorting methamphetamine two days earlier. McCuin advised that he would test positive for marijuana, which he did. He denied knowing that Coulter used methamphetamine.

The investigator reported that McCuin denied living in the home full time but admitted he was there the previous night, explaining that he had recently moved out of the home and was living with his sister. The affidavit indicated that McCuin was on a ten-year probation related to drug charges with two years remaining and that there had been a history of domestic violence between Coulter and McCuin. The investigator had serious concerns about the living conditions at the time of MM's death, the history of drug abuse by the parents, and their ability to adequately care for, supervise, and provide a safe and healthy environment for GM.

The court entered an order of emergency custody on May 9. A probable-cause order was entered on May 13, 2019, which stated that GM was removed from Coulter's custody. It further stated that McCuin, the "acknowledged father," was living in the home but did not have a paternity finding. The court found that probable cause existed at the time of the hold and continued such that GM would remain in the custody of DHS. The court placed GM in a relative placement with the grandfather and ordered a home evaluation. Both Coulter and McCuin were allowed supervised visitation at DHS. An attorney ad litem was appointed. The court ordered Coulter and McCuin to submit to random drug screens; to attend parenting classes; to have drug-and-alcohol assessments, counseling assessments, and psychological evaluations and follow the recommendations therein; to obtain and maintain stable housing, employment, and income; and to keep DHS informed of changes in addresses, telephone numbers, and employment. McCuin was also ordered to establish paternity.

A court appointed special advocate (CASA) was ordered on May 14, 2019. Following an adjudication hearing on June 17, 2019, GM was adjudicated dependent-neglected due to parental unfitness and environmental neglect, drug use by a parent, and drug exposure of the child. The court found that McCuin, the noncustodial parent, contributed to the neglect because he resided in the home that had "extreme environmental concerns," including possible drugs in the home, and GM's exposure to, or ingestion of, methamphetamine. The goal of the case was set as reunification with mother, father, or other fit and willing relative. The order stated that "grandfather needs some assistance in child proofing the house and understanding parenting concerns for this child with specific needs; however, the Court believes that these things can be resolved and that the trauma of removing the child from a family placement would outweigh the concerns."

A review hearing took place on October 16, 2019. In the review order entered the same day, the court found:

Mom and Dad are in compliance with the case plan. Dad has made progress, but Dad needs to have insight into his progress. Mom is doing better than Dad. Mom has made significant progress. Mom and Dad need to gain stability and relapses do not help stability. Parents have made progress, but have more work to do.

The court further found that the case plan was moving toward an appropriate permanency plan and continued the goal of reunification with the mother, father, or placement with a fit and willing relative. The parents were given unsupervised visitation at the DHS office for two hours, twice a week.

A permanency-planning hearing was conducted on April 15, 2020. In its April 16, 2020 order, the court found:

Mother and Father have made great progress up to this point. They have made great strides, but they do have some work left to do. Mother has struggled from alcohol which is a rough addiction and will be a struggle. Mother should get good support in place for her sobriety. The parents are making very sufficient progress. The parents need to work on their legal issues.

The goal of the case remained unchanged. The court also found that DHS had made reasonable efforts to finalize a plan for permanency and had provided services, noting that the parents had made "substantial and measurable progress to warrant an additional 90 days." The court ordered two-hour twice-weekly unsupervised visitation at the DHS office to be done by electronic means due to the COVID-19 pandemic.

On July 14, 2020, DHS filed a petition for appointment of a guardian asking the court to appoint the grandfather as guardian of GM and asserting that the guardianship was sought to provide a permanent placement for GM. On August 4, 2020, the attorney ad litem filed a petition for termination of Coulter's and McCuin's parental rights, which DHS did not join. The termination petition alleged the grounds of failure to remedy ( Ark. Code Ann. § 9-27-341(b)(3)(B)(i)(a) (Supp. 2021)) and aggravated circumstances ( Ark. Code Ann. § 9-27-341(b)(3)(B)(ix)(a)(A)-(B)(i) ) as to both parents and subsequent factors ( Ark. Code Ann. § 9-27-341(b)(3)(B)(vii)(a) ) as to Coulter only.

A fifteen-month permanency-planning hearing was held on August 10, 2020. The August 20, 2020 order provided in part:

COMPLIANCE: The Court continued the original Permanency Planning Hearing to allow additional time for the parents to make significant progress in their case in order to progress beyond supervised visitation with their child. The parents have not taken advantage of this additional time, as Mother continues to struggle with her alcohol addiction. Father's medical issues and marijuana addiction have hindered his progress as well. Therefore, the Court cannot return the child to the care or custody of either parent today as neither have made significant and measurable progress towards remedying the situation that brought this child into foster care. Further, an additional 90 days of services would not bring the parents any closer to remedying the situation. As the court cannot return the child to the parents, it must determine if there is a fit and willing relative that could take custody or guardianship of this child. The child's paternal grandfather is a willing relative, but the Court is unable to find that he is a fit custodian for the child. From his testimony, the grandfather does not appear to be managing his diabetes and he seemed at times during his testimony to be confused. Due to the young age of this child and his autism and the reasons stated above, the Court cannot find that the grandfather is a fit relative to care for this child long term. The Court hereby changes the goal from reunification and placement with a fit and willing relative to adoption.

The court found that DHS had made reasonable efforts to finalize a permanency plan for GM and changed the goal of the case to termination and adoption. The court directed DHS to obtain an affidavit of indigency from McCuin in order for counsel to be...