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

2022 Ark. App. 331

651 S.W.3d 736

Michelle DEBIASSE and Mark Debiasse, Appellants

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

No. CV-22-52

Court of Appeals of Arkansas, DIVISION I.

Opinion Delivered September 14, 2022

Tabitha McNulty, Arkansas Commission for Parent Counsel, for separate appellant Mark Debiasse.

Brett D. Watson, Attorney at Law, PLLC, by: Brett D. Watson, for separate appellant Michelle Debiasse.

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

Janet Lawrence, attorney ad litem for minor children.

WAYMOND M. BROWN, Judge

Michelle Debiasse and Mark Debiasse bring separate appeals from the Garland County Circuit Court's order terminating their parental rights to their children, M.D., B.D., and K.B. Finding their arguments either not preserved or without merit, we affirm the circuit court's termination order as to both appellants.

The Arkansas Department of Human Services (DHS) took emergency custody of M.D., B.D., and K.B. on September 13, 2019, following a report that at school, nine-year-old B.D. disclosed sexual abuse by her mother's boyfriend, Whitney Herbert. Michelle initially denied any knowledge of the sexual-abuse allegations. She then admitted knowing that another adult male, Jason Halsey, had touched B.D. Finally, Michelle also admitted that B.D. told her that Whitney had touched her "privates" twice. "Due to the disclosed sexual abuse and failure to protect," DHS placed a seventy-two-hour hold on the children. Additionally, it was observed that there was animal feces on the children's beds, and B.D. had head lice. At the time of removal, the children were living with Michelle. The circuit court entered an ex parte order for emergency custody on September 17, placing custody of the children with DHS. A probable-cause order followed on September 20, finding that probable cause for the children's removal existed and continued to exist. The court also found that Michelle knowingly, intelligently, and with understanding waived probable cause on the record through her attorney. Michelle and Mark were ordered to follow the court's orders and the DHS case plan.

In an order entered on November 14, M.D., B.D., and K.B. were adjudicated dependent-neglected as a result of sexual abuse, neglect, and parental unfitness. Specifically, Michelle failed to take steps to protect B.D. from sexual abuse and allowed Whitney, the alleged abuser, to remain in the home after B.D. had disclosed the sexual abuse. Michelle stipulated to the dependency-neglect findings and agreed that any parental visitation with the children should occur upon the recommendation of the children's therapist. The goal of the case was established as reunification with a concurrent goal of relative or fictive-kin placement. Michelle was ordered to complete a drug-and-alcohol assessment and follow the recommendations thereof; participate in individual and family therapy; participate in outpatient sex-offender treatment; submit to a psychological evaluation and follow the recommendations thereof; submit to drug screens; participate in and attend all scheduled visitation with the children; complete parenting classes; schedule and keep all appointments; obtain and maintain a safe, suitable, and appropriate home for herself and the children; maintain an environment free from illegal substances and other health and safety hazards; obtain and maintain adequate income to support herself and the children; request transportation assistance from DHS forty-eight hours in advance; cooperate with DHS and CASA; permit DHS and CASA to inspect their home; answer the door when DHS or CASA visits; and participate in any service requested by DHS. For the purposes of the Arkansas Juvenile Code, Mark was determined to be the legal father of the children because he was married to Michelle at the time of each child's birth; the two were still married at the time the children were removed. Michelle and Mark were ordered to maintain consistent contact with the children; demonstrate stability and the ability to provide for the health, safety, and welfare of the children; maintain consistent contact with DHS; and keep DHS informed of their current address.

In its February 5, 2020 review order, the circuit court found Mark was served on or around November 25, 2019 by personal service pursuant to Rule 4 of the Arkansas Rules of Civil Procedure; Mark is a parent for purposes of the Arkansas Juvenile Code because he is and was married to the biological mother at the time of the children's births; and Mark did not contribute to the dependency-neglect of the children because he has resided in another state for some time. The court entered into evidence a report prepared by DHS worker, Carson Taylor; a report of Michelle's psychological evaluation; Michelle's certificate of completion of parenting classes; and a release of information permitting the children's therapist to discuss progress with Michelle's therapist. The court found that due to safety concerns, supervised visitation was in the children's best interest. The goal of the case remained reunification with a concurrent goal of adoption/guardianship/permanent custody. Michelle was found to have complied with the case plan and orders of the court. "Specifically, she is participating in individual counseling, parenting classes, and random drug screens; she completed the psychological evaluation. However, she has no income to support herself or the juveniles. The mother has demonstrated guarded progress toward the goal of the case plan." The court found Mark in noncompliance with the case plan since he had no contact with either DHS or the children.

Visitation between Michelle and the children was held on February 20, 2020. That same evening, B.D. was admitted into Pinnacle Point Hospital, where she remained for seven days. Consequently, upon motion by the children, by and through their attorney ad litem, Kasi Hill Erwin, an order suspending visitation was entered on March 16.

In an agreed review order entered on June 10, the circuit court found the parents unfit and specifically stated,

The safety concerns that prevent trial placement, return of custody, or other placement with the parents include: parents have not, cannot, or will not provide supervision necessary to protect the juveniles from potentially dangerous harm; father is unwilling or is unable to meet the juveniles’ need for food, clothing, shelter, and/or medical or mental health care; due to the history of sexual abuse within the family, the juveniles’ safety remains an immediate concern. Additionally, no contact orders issued in the mother's criminal cases prevent placement of the juveniles in her care.

....

The parents’ visitation shall be supervised by the Department or its designee and shall occur at its reasonable discretion upon the recommendation of the juveniles’ therapist(s). Visitation of all the juveniles with the mother shall not occur while there remain no contact orders in place in case 26CR-20-264 and -265.

Although Michelle was found to have complied with the case plan and orders of the court due to her completion of parenting education, participation in individual counseling, and random drug screens, the court maintained she had no income to support herself or the children, and the condition of her home was inappropriate for children. It was also noted that she had recently been criminally charged for the abuse and neglect of the children that led to the present case. Mark was again found to have not complied with the case plan and orders of the court. He had no contact with either DHS or the minor children and had failed to demonstrate progress toward the case goal. The court found that the services provided had not benefited Mark in remedying the issues that prevent the safe return of the children because he had not participated in the services provided to him. The parents were again ordered to comply with the previous orders of the court.

A permanency-planning hearing was held on September 9. At that time, the circuit court stated that it could not

find that any parent is complying with the established case plan and orders of the Court, making significant and measurable progress toward achieving the goals established in the case plan, or diligently working toward reunification or placement in the home of the parent. No parent has met their burden to demonstrate genuine, sustainable investment in completing the requirements of the case plan and following the orders of the Court in order to authorize a plan to return or be placed in the home as the permanency goal.

The order authorized a plan for adoption with DHS filing a petition for termination of parental rights of both parents.

Accordingly, on October 8, DHS filed a petition seeking to terminate Michelle's and Mark's parental rights, alleging multiple statutory grounds and stating that termination was in the best interest of the children.

After granting multiple continuance motions, the termination-of-parental-rights hearing was ultimately held. Following the October 27, 2021 hearing, the circuit court entered an order terminating both Michelle's and Mark's parental rights to M.D., B.D., and K.B. Both Michelle and Mark timely appeal from the termination order.

This court reviews termination-of-parental-rights cases de novo.¹ Grounds for termination of parental rights must be proved by clear and convincing evidence, which is that degree of proof that will produce in the finder of fact a firm conviction of the allegation sought to be established.² The appellate inquiry is whether the circuit court's finding that the disputed fact was proved by clear and convincing evidence is clearly erroneous.³ 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.⁴ In resolving the clearly...