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

510 S.W.3d 793

Montana GUTHREY, Appellant

v.ARKANSAS DEPARTMENT OF HUMAN SERVICES and Minor Children Appellees

No. CV–16–751

Court of Appeals of Arkansas, DIVISION I.

Opinion Delivered January 18, 2017

Tina Bowers Lee, Arkansas Public Defender Commission, for appellant.

Mary Goff, Office of Chief Counsel, for appellant.

Chrestman Group, PLLC, by: Keith L. Chrestman, attorney ad litem for minor children.

LARRY D. VAUGHT, Judge

Appellant Montana Guthrey appeals the Pulaski County Circuit Court's order terminating her parental rights to her four minor children. Guthrey challenges the sufficiency of the evidence supporting the circuit court's findings as to the statutory grounds for termination and as to the children's best interest. We agree that the evidence was legally insufficient to support the circuit court's findings, and we therefore reverse.

Montana Guthrey's four young children were removed from her custody and placed in the care of the Arkansas Department of Human Services (DHS) in December 2014, following Guthrey's arrest as the result of a traffic stop during which police found drugs and drug paraphernalia in a car driven by Guthrey's boyfriend, Kirk Childers, and in which Guthrey and two of her children were passengers. Guthrey told the police that she and her four children lived with her brother and sister-in-law. Upon investigation as to whether the home was an appropriate place for the children to remain while Guthrey was incarcerated, Guthrey's sister-in-law failed a drug test, and all four children were taken into DHS custody.

On February 18, 2015, the circuit court adjudicated Guthrey's four children dependent-neglected based on a stipulation of parental unfitness and neglect because Guthrey had been arrested and had tested positive for benzodiazepines and PCP at the time of her arrest. The case goal was set as reunification and the case was placed in the court's "Zero to Three" program that allowed for more frequent review hearings and additional services. During several subsequent Zero to Three review hearings, the court noted Guthrey's progress in working the case plan. By March 11, 2015, she had successfully completed her psychological evaluation and was granted additional visitation with her children. In April, the court stated that Guthrey was compliant with the case plan and was "making great progress." In June, Guthrey was compliant and was receiving outpatient drug treatment and counseling, was attending AA/NA support group meetings, had passed all drug screens, had maintained a clean and appropriate home, and was abiding by all court orders. However, the June order noted that "there have been some bumps in the road" without specifying the problems.

One of those "bumps in the road" may have been a reference to the fact that Guthrey was pregnant, which was first noted by the court the following month in the July review order. The court stated that it would give her "one more [Zero to Three] review, with the caveat that reunification may not remain the goal" and stated that "if today were permanency planning, there is no doubt what the next hearing would be." The court stated that Guthrey had "squandered seven months" of the case and that her priority had not been her children. The court expressed disapproval of her pregnancy, stating, "[Guthrey] cannot handle the four children she has, and she is adding another child into this mix with a father who will be in prison," referring to Kirk Childers. The court admonished Guthrey, stating that "[m]en [are] the worst choice this court repeatedly sees; they are always the same man in a different skin, and they are never appropriate and never stick around."

At the August hearing, the court entered an order stating that Guthrey had "done a lot of positive things on her drug treatment," but that she had more work to do. The court explained that it was willing to give Guthrey additional time and support at the upcoming permanency-planning hearing. It also modified the visitation schedule to allow for biweekly home visits, including Saturday visits of up to five hours. As part of this order, the court stated that "there shall be no men in her home; no one but family ... shall be in the home for visits."

In November, the court held a permanency-planning hearing at which Guthrey's caseworker praised the progress she had made in overcoming her drug addiction. The court's permanency-planning order required Guthrey to continue working the case plan and receiving services, but it changed the case goal from reunification to termination and adoption. Again, the court recognized that Guthrey had maintained stable and appropriate housing and employment, had completed most services, had not tested positive for any drugs, had consistent visits with her children, and had gotten her driver's license reinstated. Her caseworker requested that the court give her three more months to work toward reunification and expressed the opinion that the children were ready to be reunified with their mother.

The evidence also revealed that Guthrey was in a new relationship with a disabled veteran she had met in AA/NA who was also a recovering alcoholic. She had ended her relationship with Kirk Childers when he went to prison, Mr. Childers had voluntarily relinquished his parental rights to their child, and he was no longer a part of her life. She admitted that the man she was now seeing had been in her home during the pendency of the case, noting one evening she had friends over for a game night and he had come to get a lawnmower. However, there was evidence that his car had been seen at Guthrey's home late into the night when no one else was there. This was when the children were not present, and Guthrey stated that he had never been around her children and would not be around them if they were returned to her.

Guthrey also testified that, as part of her twelve-step program, she was working on improving her "character defects," and she listed honesty as something her sponsor was helping her work on. She admitted that, approximately a year prior, when she first began working the case plan, she had falsely stated that she was regularly attending AA/NA meetings that she was not attending. She said that she was "still continuing my rehab" at the time. She also acknowledged that, although she had been ordered to attend three AA/NA meetings per week, there had been a time during the course of the case that she could manage to attend only one per week, due to working two jobs and completing all other court-ordered services. Finally, she acknowledged that the results of her psychological evaluation indicated that she needed to address "decision making" and "poor choices," which she agreed had been a problem in her life, specifically noting her drug use with Kirk Childers. She stated that she had recently restarted individual therapy on her own accord.

Guthrey testified that she was working two jobs while also completing all of the required services and therapies for the case plan. She stated that her father-in-law had helped her pay rent for a few months and acknowledged that at one point there had been an eviction notice against her, which she claimed was due to missing a deadline for re-signing her lease when her apartment was sold. She testified that she had maintained a stable, appropriate home and that it was fully ready for the return of her children.

Despite the caseworker's praise and request for more time, the court found that Guthrey's significant progress was not enough to forestall termination proceedings. The court stated that it had concerns about Guthrey's honesty, finding that she had been "evasive" throughout the case. The court stated that "mother is addicted to bad men" and "being addicted to men is just as bad as being addicted to drugs."

In January 2016, DHS and the attorney ad litem filed joint petitions to terminate Guthrey's parental rights. The evidence at the termination hearing was essentially the same as at the permanency-planning hearing: Guthrey had complied with the case plan and had successfully completed drug treatment as well as all other court-ordered services and therapies. She had given birth during the case to a fifth child whose father, Kirk Childers, was incarcerated. She had begun dating a recovering alcoholic. He had been in her home, even late into the night, but never when the children were present. She had maintained appropriate employment and housing and had frequently and successfully exercised visitation with the children.

The court entered an order terminating Guthrey's parental rights on June 9, 2016, finding that termination was in the children's best interest because returning them to her care would expose them to a risk of harm based on her poor judgment and inability to keep them safe. It also found three statutory grounds for termination: failure to remedy, subsequent factors, and aggravated circumstances. Guthrey filed a timely notice of appeal.

In Knuckles v. Arkansas Department of Human Services , we explained that we review termination-of-parental-rights cases de novo. 2015 Ark. App. 463, at 2–3, 469 S.W.3d 377, 378–79 (citing Dinkins v. Ark. Dep't of Human Servs. , 344 Ark. 207, 40 S.W.3d 286 (2001) ). However, we reverse a trial court's decision to terminate parental rights only when it is clearly erroneous. Ullom v. Ark. Dep't of Human Servs ., 340 Ark. 615, 12 S.W.3d 204 (2000) ; Mitchell v. Ark. Dep't of...