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

2022 Ark. App. 145

643 S.W.3d 479

Kristen GIBBY, Appellant

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

No. CV-21-432

Court of Appeals of Arkansas, DIVISION I.

Opinion Delivered March 30, 2022

Jennifer Oyler Olson, Arkansas Commission for Parent Counsel, for appellant.

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

Casey D. Copeland, attorney ad litem for minor child.

KENNETH S. HIXSON, Judge

Appellant Kristen Gibby appeals after the Conway County Circuit Court filed an order terminating her parental rights to her child, IG (DOB 09-09-20).¹ Appellant argues on appeal that (1) there was insufficient evidence to support the statutory grounds for termination and (2) there was insufficient evidence that termination was in IG's best interest.² We affirm.

I. Relevant Facts

On September 10, 2020, the Arkansas Department of Human Services (DHS) filed a petition for emergency custody and dependency-neglect of IG. In the affidavit attached to the petition, DHS stated that a seventy-two-hour hold was exercised over IG because it could not ensure IG's health and safety after his birth due to the injuries sustained by IG's older sibling, TP. It went on to explain that IG's siblings, TP and TF, had been removed from appellant's custody on April 11, 2020, after TP was admitted to Arkansas Children's Hospital with multiple bruises on her body, bilateral retinal hematomas, and subdural hematomas on both sides of her brain and in her spinal column.

The circuit court granted the petition, finding that probable cause existed for the removal, and a probable-cause order was filed on November 12, 2020. An adjudication order was subsequently filed on January 20, 2021, finding IG dependent-neglected. The circuit court explained that it took judicial notice of the evidence submitted in the companion case involving IG's siblings, TF and TP, including the previous testimony offered by Dr. Rachel Clingenpeel. The order further made the following findings:

The Court finds that abuse, resulting in serious physical injuries, were suffered by another infant child, a sibling to the juvenile respondent, in the home of the parents prior to that child being placed in the custody of the Department. The Court finds that a substantial risk of serious harm as a result of abuse to a sibling exists to the juvenile respondent [IG].

The goal of the case was set as reunification with a fit parent. Appellant was ordered to cooperate with DHS, comply with the case plan, and obey all orders of the circuit court; view "The Clock is Ticking" video; remain drug-free and submit to random drug screens; participate in and complete parenting classes; and obtain and maintain clean, safe, and stable housing and employment. Further, if requested by DHS, appellant was ordered to submit to a drug-and-alcohol assessment and follow any recommendations; submit to a psychological evaluation and follow any recommendations; and attend and participate in counseling and/or AA/NA meetings. Appellant did not appeal from this order or its findings.

A joint review hearing took place on February 25, 2021.³ Regarding compliance with the case plan, the circuit court found that appellant had

housing, income, transportation, and has complied with counseling and other services. However, horrendous injury to a child occurred while the juvenile was in the care of the mother and father only, as testified to by the mother and father. Payton Lane Gibby is incarcerated at this time for charges relating to the battery of the child. The parents have given a number of explanations for what may have happened, but none of those explanations are plausible.... The Court specifically finds the testimony of Brandy Cochran is credible. The Court finds neither of the parents’ testimony was credible.

It was at this hearing that the circuit court changed the goal to adoption following termination of parental rights.

DHS filed a petition for the termination of parental rights on March 2, 2021, specifically alleging that appellant's parental rights should be terminated under the following grounds pursuant to Arkansas Code Annotated section 9-27-341(b)(3)(B)(vi)(a) , (vii)(a) , and (ix)(a)(2) –(3) (Supp. 2021): a finding by the court that the juvenile or a sibling was dependent-neglected due to abuse that could endanger the life of the child and was perpetrated by the juvenile's parent, parents, or step-parent; subsequent factors; that the parent had committed or aided in a felony battery that resulted in serious bodily injury to any juvenile; and aggravated circumstances, specifically that there is little likelihood that services to the family would result in successful reunification and that a child or sibling has been neglected or abused to the extent that the abuse could endanger the life of the child. A joint termination hearing was held on April 8, 2021.

Because we detail the testimony and evidence presented at the joint termination hearing in the companion case, Gibby , 2022 Ark. App. 146, ––– S.W.3d ––––, 2022 WL 946174, involving IG's older siblings, we do not repeat those facts here.

At the conclusion of the termination hearing, the circuit court orally ruled from the bench that it was granting DHS's petitions for termination of parental rights filed in both cases. The circuit court subsequently filed a separate written order terminating appellant's parental rights to IG on June 9, 2021. Regarding IG, the circuit court specifically found by clear and convincing evidence that all the grounds alleged in the petition against appellant supported termination and that it is in the best interest of IG to terminate appellant's parental rights. Relevant to appellant's points on appeal, the circuit court made the following specific findings:

4. The Court has considered and reviewed all the evidence submitted and the testimony of the witnesses in this matter, and finds that the Department of Human Services has proven by clear and convincing evidence that:

a. The court has found the juvenile or a sibling dependent-neglected as a result of neglect or abuse that could endanger the life of the child, sexual abuse, or sexual exploitation, any of which was perpetrated by the juvenile's parent or parents or step-parent or step-parents. [TP] and [TF], siblings of the juvenile [IG], were dependent neglected due to significant injuries to the juvenile [TP] that was at variance with the history given by the parents. From the parents’ own testimony, they were the only ones who were with [TP] when she was injured, therefore either [TP's] mother, or her step-father, Payton Gibby, abused her to such an extent that it could and did endanger her life. The baby almost died on the night of April 11, 2020, and a year later, she is still recovering from those injuries. Those injuries included extreme injury to [TP], at that time a five (5) month old baby, including sub traumatic subdural hemorrhage, acute respiratory failure, fractured rib, retinal hemorrhaging, abrasions on her ear, contusions on her thorax, left lower leg, right lower leg, and right forearm. The Court adjudicated the juveniles dependent neglected based upon the history given about the injuries sustained by [TP] were at variance with the medical opinion of Dr. Clingenpeel. The parents told different stories as to what caused the injuries to the juvenile, none of which were capable of causing such serious and devastating injuries. The Court found that the child was abused and that the previous testimony of Kristen [Gibby] and Payton Lane Gibby before the Court as to how the child's injuries were received is not credible. The testimony heard at the Termination of parental rights hearing from the witnesses is replete with the mother's anger issues, and her feelings toward the juvenile. The Court specifically finds the testimony of Ashley Coffman, Betty Hill and Gena Coffman credible. She threatened to have the juvenile ripped out of her womb, and asked other people to adopt him. The mother herself showed her inability to control her anger on the stand today. The mother was inappropriate on the witness stand, cursing and having an angry outburst. Despite the services given to the mother, she has not resolved her anger issues, and is still a risk to any juvenile who is around her. Further the Court finds Payton Gibby's testimony credible regarding the mother's admission of recent drug use. The Court finds throughout this case, Payton Gibby has shown that he will not protect the juveniles from Kristen [Gibby].

b. That other factors or issues arose subsequent to the filing of the original petition for dependency-neglect that demonstrate that placement of the juvenile in the custody of the parent is contrary to the juvenile's health, safety, or welfare and that, despite the offer of appropriate family services, the parent has manifested the incapacity or indifference to remedy the subsequent issues or factors or rehabilitate the parent's circumstances that prevent the placement of the juvenile in the custody of the parent. The juvenile was removed due to the serious physical abuse of the juvenile [TP], his sibling. Since that time, the mother and father have continued to come up with explanations for the injuries that were not possible. Further, Payton Gibby testified that the mother admitted to him she was using illegal substances, and showed him her track marks. The mother has failed to disclose the real reason behind the juvenile's injury, and has instead used illegal substances, without telling the Department, or attempting any type of rehabilitation. This shows an indifference at the very least to remedy the subsequent factors. The Court has found that the Department has provided reasonable efforts to provide services to correct the parents’ issues, however the mother cannot or will not be honest with the Department about the cause of the juvenile's injuries or her substance abuse issues. The attempt to rehabilitate

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