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

680 S.W.3d 52

2023 Ark. App. 548

Stacie HOLLAND and Jerry Holland, Appellants

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

No. CV-23-129

Court of Appeals of Arkansas, DIVISION III.

Opinion Delivered November 29, 2023

APPEAL FROM THE SEBASTIAN COUNTY CIRCUIT COURT, FORT SMITH DISTRICT [NO. 66FJV-20-122], HONORABLE ANNIE POWELL HENDRICKS, JUDGE

Tabitha McNulty, Arkansas Commission for Parent Counsel, for separate appellant Jerry Holland.

Brett D. Watson, Attorney at Law, PLLC, by: Brett D. Watson, for separate appellant Stacie Holland.

Kaylee Wedgeworth, Ark. Dep’t of Human Services, Office of Chief Counsel, for appellee.

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

WENDY SCHOLTENS WOOD, Judge

₁Stacie and Jerry Holland appeal the Sebastian County Circuit Court’s December 12, 2022 order terminating their parental rights. The circuit court terminated Stacie’s rights to her biological daughters, Minor Child 1 (MC1), born on May 3, 2013, and Minor Child 2 (MC2), born on September 7, 2017. The circuit court terminated Jerry’s parental rights to MC2, finding Jerry is her legal parent because she was born of the marriage between Stacie and Jerry. On appeal, Stacie argues that there is insufficient proof of statutory grounds for termination of her parental rights and insufficient proof that termination is in her daughters’ best interest. Jerry challenges only the circuit court’s finding that termination is in the best interest of MC2. We affirm.

₂The Arkansas Department of Human Services (DHS) opened a protective-services case (PSC) involving the Hollands following an October 2019 referral for educational neglect. Intensive Family Services (IFS) was referred due to Jerry’s continued drug use and abusive behavior toward both the children and Stacie. In February 2020, MC1 disclosed to an IFS worker that Jerry hit her "on her butt, back, and the back of her head a lot." During an interview on March 2, 2020, she disclosed that Jerry "busted her butt when I do bad stuff[,]" and she showed the worker a bruise. MC1 explained that the family dog had urinated on the floor, and that is when Jerry "hit her 6 times" before Stacie walked in and told him to "stop[,] that it was too much." MC1 said Jerry hits her on her face and head with a belt and that MC2 does not get the same treatment "because he loves her." DHS exercised an emergency hold on the children that day and filed a petition for dependency-neglect against Stacie and Jerry. DHS alleged that the children were at substantial risk of serious harm due to abuse, neglect, or parental unfitness.

On August 3, the circuit court entered an adjudication order finding MC1 and MC2 dependent-neglected due to parental unfitness of both parents and substance abuse by Jerry. The court noted that Jerry continued to use illegal drugs; MC1 had reported acts by the parents constituting physical, psychological, and emotional abuse; Stacie appeared unwilling or unable to protect the children from abuse; and the parents had not utilized the parenting services, substance-abuse treatment, or counseling services that had been offered.

The court set the goal of the case as reunification and ordered both parents to comply with the case plan among other things. In addition, Stacie was ordered to receive counseling ₃as a victim of domestic violence and to address her anger-management issues during counseling sessions. Jerry was ordered to attend domestic-violence classes, to complete all recommendations from his drug-and-alcohol assessment, and to maintain stable employment. Finally, the circuit court found that Jerry is not MC1’s parent.

On August 26 and September 16, the circuit court held a review hearing. The court’s review-hearing order, which was not entered until March 8, 2021, found that both Stacie and Jerry tested positive for methamphetamine on August 27, as reflected in hair-follicle test results introduced at the hearing. The goal of the case was changed to reunification with the concurrent goal of adoption, and custody of the children remained with DHS.

On April 21, 2021, the circuit court held a permanency-planning hearing, the order for which was not entered until April 28, 2022. In its order, the court found that DHS had made reasonable efforts to provide family services, but the parents had not completed the case plan. It found that Jerry had suffered an injury that delayed his ability to complete some of the ordered services; Stacie had served as Jerry’s caregiver during his convalescence; and due to Jerry’s ongoing medical problems, all parties had agreed that additional time for compliance with the case plan was appropriate. The court stated that each of the parents had undergone a psychological evaluation but had participated in only some counseling and classes on parenting without violence, domestic violence, and anger management. Jerry was enrolled in treatment following his drug-and-alcohol assessment but was found to have been less than candid during the assessment. The court ordered him to disclose his prior substance abuse, all prior positive drug screens, and all his criminal convictions and to complete all ₄recommended treatment. Stacie was ordered to continue to attend counseling sessions, be candid with the counselor, complete counseling as a victim of domestic violence, and address her anger-management issues. Both parents were again ordered to submit to a ninety-day hair-follicle drug test before the next scheduled hearing.

The court held another review hearing on August 4, 2021, the order for which was not entered until March 30, 2022. In the order, the court reiterated the findings it made in its previous order and specifically stated that the parties had agreed to maintain the status quo from the April 21 permanency-planning hearing pending staffing and compliance with the case plan and order.

On January 25, 2022, Stacie and Jerry filed a motion seeking to schedule a hearing, and on March 3, they filed a motion alleging that DHS had made no reasonable efforts toward reunification in over a year. They further alleged that the children’s therapist had discontinued family therapy and that they had completed their case plans. They asked the court to make a finding of no reasonable efforts and to order commencement of reunification services. On March 9, the court entered an order scheduling a permanency-planning hearing for March 30, 2022, and ordered hair-follicle testing for Jerry.

In the permanency-planning order, which was not entered until June 21, the circuit court found that the permanency-planning hearing began as scheduled on March 30 but was continued because bad weather prevented the parents from attending. The hearing was rescheduled for April 13, at which time counsel for the parents moved for another continuance because they could not attend due to bad weather. The court noted that the ₅"sun was shining" and denied the continuance. The hearing proceeded in the absence of Stacie and Jerry. The court found that DHS had made reasonable efforts to provide family services and finalize a permanency plan for MC1 and MC2 and that return of custody to the parents was not in the children’s best interest. Last, the court found that Jerry had continued to test positive for methamphetamine.

On May 20, DHS and the attorney ad litem filed a petition for termination of parental rights, which was amended on June 24, seeking to terminate Stacie’s parental rights to MC1 and MC2 and Jerry’s parental rights to MC2. As to both parents, the petition alleged the following grounds: (1) failure to remedy, Ark. Code Ann. § 9-27-341(b)(3)(B)(i)(a) (Supp. 2023); (2) subsequent factors, Ark. Code Ann. § 9-27-341(b)(3)(B)(vii)(a); and (3) aggravated circumstances, Ark. Code Ann. § 9-27-341(b)(3)(B)(ix)(a)(3)(B).

The circuit court held a termination hearing on August 17. When the case was called, the attorneys for both parents requested a continuance because Stacie and Jerry reported that morning that they both had COVID-19. The court suspended the hearing and ordered DHS to administer COVID-19 rapid tests to Stacie and Jerry in their home and to bring them to court if the tests were negative. Following administration of the tests and Stacie and Jerry’s refusal to be brought to court, the court received evidence that the parents’ COVID-19 tests administered by DHS were negative; that Stacie and Jerry had been seen at the courthouse earlier that morning; that the photographs of the image of the positive COVID-19 tests that the parents had texted to their attorneys were identical to test photographs found online, which contained identical test numbers; and that Jerry screamed and cursed ₆at the DHS caseworker and the CASA volunteer who were sent to administer the tests, he initially refused to let them inside the house, and he slammed the door shut on them. The circuit court denied the parents’ request for a continuance, and the termination hearing proceeded in their absence.

Joshua Brown, a DHS employee, testified that he was assigned to the Holland’s PSC and that the family was provided the following services: transportation, drug-and-alcohol assessments, parenting classes, and IFS. Brown testified that the parents tested positive for methamphetamine multiple times and that there were reports that Jerry was yelling at the children and Stacie. Brown stated that the children ultimately went into the care of DHS after MC1 disclosed that Jerry had hit her.

Bridget Cornett, a program assistant for DHS who transported the children to visits with their parents, testified that Stacie disclosed to her that Jerry would spank the children with belts on areas that he should not. Cornett, who observed the visits, also testified that Stacie showed favoritism toward MC2.

Dr. Martin Faitak, the psychologist who evaluated both Stacie and Jerry, testified that Stacie reported that Jerry had problems with anger, drug use, and maintaining employment, but she was...