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

684 S.W.3d 279

2024 Ark. App. 78

Summer KAZZEE, Appellant

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

No. CV-23-490

Court of Appeals of Arkansas, DIVISION I.

Opinion Delivered February 7, 2024

APPEAL FROM THE GARLAND COUNTY CIRCUIT COURT [NO. 26JV-21-370], HONORABLE LYNN WILLIAMS, JUDGE

Eden Law Firm, by: Kimberly Eden, for appellant.

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

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

BART F. VIRDEN, Judge

₁The Garland County Circuit Court terminated appellant Summer Kazzee’s parental rights to her minor child (MC), a son. Kazzee argues that the trial court erred in changing the case goal at the permanency-planning stage from reunification to termination of parental rights and adoption. Kazzee further contends that the trial court erred in finding sufficient evidence to support the failure-to-remedy ground for termination and in finding that termination was in MC’s best interest. We affirm both orders.

I. Background

On December 17, 2021, the Arkansas Department of Human Sendees (DHS) filed a petition for dependency-neglect and a motion to withhold reunification services. The petition alleged that DHS had taken emergency custody of MC, born December 14, because ₂of Kazzee’s extensive history with DHS and her abuse, neglect, and unfitness with respect to her newborn baby. In the affidavit attached to the petition, the social worker attested that Kazzee had been inattentive to, and disengaged from, MC, who cried while lying in his bassinet next to her hospital bed. In adjudicating MC dependent-neglected, the trial court found the following:

The Court finds that the juvenile is dependent-neglected and that the allegations in the petition are true and correct,specifically, the Court finds the juvenile was at substantial risk of serious harm as a result of the mother’s history of neglect and parental unfitness to the juvenile or a sibling. Additionally, the juvenile was subjected to aggravated circumstances, specifically: siblings were neglected and abused such that the abuse and neglect endangered the life of one sibling and took the life of another; the parent has committed a felony battery that resulted in serious bodily injury to any child; the parent has had parental rights involuntarily terminated as to a sibling of the child. In case 26CR-16-507, Ms. Kazzee was charged and found guilty by [a] jury of a class D felony for the near starvation of [MC1] as he was found to have gained no weight since his birth several months earlier; he was severely dehydrated, cachectic, suffering from temporal wasting, and near death. In case 26JV-16-299, that child was removed to foster care; Ms. Kazzee did not complete services to have the child returned; her parental rights to [MC1] were involuntarily terminated; that child was later adopted. In case 26CR-19-851, Summer Kazzee was charged and pled guilty to the negligent homicide of [MC2] after Ms. Kazzee left the child unattended for many hours in a car seat, who was strangled by the seat’s straps. In case 26JV-19-206, her surviving child [i.e., MC3], the twin of [MC2], was removed to foster care; Ms. Kazzee again did not complete services to have the child returned; [MC3] was placed in the custody of his father and the case was closed.

Following adjudication, the trial court set a goal of reunification and ordered DHS to provide Kazzee with services. The case was reviewed in May and September 2022, and the trial court continued the goal of reunification but established a concurrent goal of relative or fictive-kin placement. At a permanency-planning hearing held in December, the trial court found that Kazzee was partially compliant with the case plan and court orders but still had ₃concerns about her ability to parent MC. The trial court changed the goal from reunification to termination of parental rights and adoption.

In March 2023, DHS filed a petition to terminate Kazzee’s parental rights based on three grounds pursuant to Ark. Code Ann. § 9-27-341(b)(3)(B) (Supp. 2023): (i)(a) (twelve-month failure to remedy); (vi)(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, which was perpetrated by the juvenile’s parent); and (ix)(a)(4) (involuntary termination as to a sibling). Following a hearing, the trial court specifically found that the evidence had proved the failure-to-remedy ground as alleged in DHS’s petition. The trial court also found that termination was in MC’s best interest, considering both his adoptability and the potential harm in returning him to Kazzee’s custody.

II. Discussion

A. Goal Change at Permanency-Planning Stage

[1] As a preliminary matter, DHS argues that Kazzee’s appeal of the permanency-planning order is untimely. In order to challenge findings made in the permanency-planning order, the order must be designated in the notice of appeal, and the record must include the transcript of the hearing. Coulter v. Minor Child, 2021 Ark. App. 398, 636 S.W.3d 377. Here, Kazzee designated the permanency-planning order in her amended notice of appeal and provided the hearing transcript in a supplemental record. We conclude that Kazzee’s appeal of the permanency-planning order is properly before us.

[2] ₄The permanency-planning statute requires the court to select a goal based on the best interest, health, and safety of the juvenile. Ark. Code Ann. § 9-27-338(c)(3) (Repl. 2020). The trial court may authorize a plan to place custody of the juvenile with a parent; however, the parent must be complying with the established case plan and court orders, making significant and measurable progress toward achieving the goals established in the case plan, and diligently working toward reunification or placement in the parent’s home. Ark. Code Ann. § 9-27-338(c)(8)(A)(i). The burden is on the parent to demonstrate a genuine, sustainable investment in completing the requirements of the case plan and following the court orders to retain reunification as the permanency goal. Ark. Code Ann. § 9-27-338(c)(3)(A)(iii). A petition to terminate parental rights is not contingent on the outcome of a permanency-planning hearing. Ark. Code Ann. § 9-27-338(b)(1)(A); Bean v. Ark. Dep’t of Human Servs., 2017 Ark. App. 77, 513 S.W.3d 859.

At the permanency-planning hearing in December 2022, the trial court heard testimony from Dr. George DeRoeck, who had performed a psychological evaluation of Kazzee in May. He noted that Kazzee was functioning within the borderline range of intellectual development. He diagnosed specified anxiety disorder. He testified that she would require "a good deal" of support and assistance with parenting and that close monitoring of her willingness to work with DHS would be required. Dr. DeRoeck stated, however, that Kazzee’s "overall capacity to independently parent is marginal." Ashlee Fason, a licensed social worker at Ouachita Behavioral Health and Wellness, testified that she had ₅been counseling Kazzee for several months and that Kazzee had made progress "through self-reporting" and was learning coping strategies for her anxiety and depression.

Tashauna Hammock, a DHS caseworker, testified that, although Kazzee had parenting classes through Changepoint, she was still not able to implement those skills. She said that Kazzee’s compliance with the services was not the issue—it was her ability to apply what she had learned. Hammock further testified that she had visited Kazzee’s home in the past month and noted that there were no baby items for MC. She stated that Kazzee’s visits with MC Could not be at her home because of the home’s unsafe condition. Hammock further testified that Kazzee is not employed, sleeps most of the day, and relies on her boyfriend for support. She also said that Kazzee had told her that she is not willing to be on medication for her depression or anxiety. Hammock explained that

[t]he reason for the goal change, altogether in the last 72 months Ms. Kazzee has had a case with the Department for 52 of those months. She has been through intensive parenting classes, therapy, she’s done psych evals, and she’s been reported as unmotivated. Her depression, her anxiety is still a bander. There are concerns about her being able to parent independently, and home visits, there’s dog feces on the floor, puppy pads, dried urine. It’s cluttered with clothes stacked up. Ms. Kazzee sprained her wrist from the clutter. She tripped over the clutter in her home. Given the extensive history of her mental health, that’s the reason we’re recommending a goal change.

Kazzee testified that she lives with her boyfriend, Christopher Ulmer, in a two-bedroom apartment. She testified that her past troubles were due to being with an abusive, controlling man but that she had learned from all of her traumatic experiences and knew that she could do better.

Kazzee requested more time with MC and said of the court and of DHS, "[I]f they tell me to jump off a cliff, I will do it."

₆At the conclusion of the hearing, the trial court told Kazzee that it knew her history "from day one," referring to her prior cases with her other children. The trial court noted that she had been offered services in the past but that the services did not "seem to have any impact." The trial court said that it could not safely place MC back in the home with her. Although the trial court changed the goal of the case to termination of parental rights and adoption, it ordered DHS to arrange for intensive parenting classes and told Kazzee to continue with the reunification services until the termination hearing, which it "pushed" from early March to mid-April 2023 to give Kazzee plenty of time to benefit from services.

On appeal from the permanency-planning order, Kazzee argues that she was complying with the case plan and court orders, making significant progress, and working diligently...