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

2022 Ark. App. 485

656 S.W.3d 1

Patrick KUGLER and Tepring Loveland, Appellants

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

No. CV-22-344

Court of Appeals of Arkansas, DIVISION III.

Opinion Delivered November 30, 2022

Leah Lanford, Arkansas Commission for Parent Counsel, for separate appellant Patrick Kugler.

Brett D. Watson, Attorney at Law, PLLC, by: Brett D. Watson, for separate appellant Tepring Loveland.

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

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

RITA W. GRUBER, Judge

This is a termination-of-parental-rights case in which both parents, appellants Tepring Loveland and Patrick Kugler, separately appeal the Washington County Circuit Court's order terminating their parental rights to Minor Child 1 (05/06/15)¹ and Minor Child 2 (06/21/18) (hereinafter "MC1" and "MC2"). Loveland challenges both the grounds for termination and the finding of best interest for both children. Kugler, MC2's putative father, argues that the circuit court erred in terminating his parental rights to MC2 under grounds that pertain only to "parents" without first making a finding that Kugler is a parent. We affirm the circuit court's order with regard to Loveland, but we reverse and remand the court's termination of Kugler's parental rights.

On February 1, 2021, the Arkansas Department of Human Services ("DHS") filed a petition for emergency custody and dependency-neglect contending that the removal of the children from their parents’ custody was necessary due to parental unfitness. Kugler was named the putative father of MC2, and Jose Castillo was named the putative father of MC1. Kugler and Loveland live together, and Loveland identified Kugler as MC2's biological father.

The affidavit attached to the petition provided that Loveland and Kugler had been arrested on January 29 and charged with various drug offenses and with endangering the welfare of a minor. The children were placed in DHS custody. According to the affidavit, the parties’ neighbor and Loveland's brother-in-law, Daniel Fletcher, sold methamphetamine out of the family's home while the children were present. The undercover officer who purchased the drugs also reported that syringes loaded with methamphetamine were accessible to the children and that the home was "filled with roaches and pet feces," clothes, and trash. The children were adjudicated dependent-neglected in an order entered on April 14, 2021, based on parental unfitness, to which Loveland and Kugler stipulated. The court set a goal of reunification with a concurrent goal of placement with a relative and authorized unsupervised visitation and a trial home placement with Loveland and Kugler.

On April 15, 2021, the trial home placement began. At a review hearing on June 7, 2021, the circuit court found that Loveland was not in compliance with the case plan and that custody could not be returned to her but found that the trial home placement should continue. Specifically, the court found that Loveland and Kugler had maintained stable housing, submitted to random drug screens, participated in parenting classes, and completed drug-and-alcohol assessments. But the court stated that a lab confirmed Loveland had tested positive on June 1 for methamphetamine and that Kugler had been arrested for public intoxication merely days after completing outpatient substance-abuse treatment. The court ordered the parties to refrain from the use of all alcohol and illegal substances. The court also ordered them to continue to work on their sobriety plans and participate in all recommended substance-abuse treatments.

On June 23, Loveland again tested positive for methamphetamine as well as K2, opiates, and alcohol; on June 28, she tested positive for methamphetamine, K2, and alcohol, and the trial home placement was terminated. When the children were removed, they had bites on their legs from bed bugs in the home. In an order entered July 13, the court found there had been a change of circumstances after Kugler was arrested due to a domestic conflict in the parties’ home. The court also ordered that a hair-follicle test be performed on Loveland to include an analysis of her prescription medications that she insisted were causing her drug screens to be positive. The court ordered that visitation with the children be supervised. On July 14, a hair-follicle test on Loveland was positive for methamphetamine.

Kugler continued to test positive for alcohol and THC throughout the case. He was arrested on July 5 for aggravated assault and third-degree domestic battery while in the parties’ home, jailed, and released on July 13. On September 17, he was arrested on a felony warrant out of Kansas and was extradited to Kansas, where he remained until November 30.

On September 21, the court held a permanency-planning hearing and changed the goal to adoption. The court found that the parties had continued to test positive for alcohol and illegal substances. DHS filed a petition to terminate parental rights on November 12, specifically noting that Kugler had never established paternity as to MC2 but had participated in the case and "acted as the child's father during the case."

The court held a hearing on the petition on December 13 and 14. The court entered an order March 12, 2022, terminating Loveland's parental rights to both children and terminating Kugler's parental rights to MC2. DHS stated that, in addition to the positive drug screens in June and July, Loveland had tested positive for alcohol on April 29, April 30, May 4, May 7, June 23, June 28, July 30, August 12, August 26, October 7, October 26, and November 10; had been a no-show or refused to screen on multiple occasions; and had failed to complete an outpatient substance-abuse program or attend NA/AA meetings as recommended. DHS alleged that, despite having no children in the home and being unemployed, Loveland's home was found in total disarray and unclean on October 26.

In its order, the circuit court found grounds of subsequent factors and aggravated circumstances as to both parties, although it continued to refer to Kugler as the putative parent of MC2. The court did not make specific findings in its finding of aggravated circumstances, but it provided a detailed explanation regarding the subsequent-factors ground. The court found that after the adjudication, the existence of a pattern of domestic violence by Kugler against Loveland became evident, but Loveland allowed Kugler to return to the family home without completing any counseling as she had insisted he would have to do. Loveland also allowed her adult son and his girlfriend to stay in her home despite her knowledge that they were using illegal drugs and struggled with addiction. The court also found that Loveland suffers from COPD yet continued to smoke, in spite of acknowledging that her use of cigarettes while using oxygen posed a health threat to her children and to herself. The circuit court found that Loveland tested positive for methamphetamine on June 1, June 23, and June 28 and for alcohol multiple times in April, May, and June while her children were in her custody on a trial home placement. Finally, the court noted that her prognosis in counseling varied between poor, fair, and guarded; she had not completed an outpatient substance-abuse program as recommended by her drug-and-alcohol assessment; and she had not taken responsibility for her substance-abuse issues.

The court also found that termination was in the children's best interest, specifically considering the likelihood that they would be adopted and the potential harm that could be caused by returning the children to the parents.

I. Loveland's Appeal

We turn first to Loveland's appeal. She challenges both grounds and best interest. We review termination-of-parental-rights cases de novo. Shawkey v. Ark. Dep't of Hum. Servs. , 2017 Ark. App. 2, at 4, 510 S.W.3d 803, 806. At least one statutory ground must exist, in addition to a finding that it is in the child's best interest to terminate parental rights; these must be proved by clear and convincing evidence. Ark. Code Ann. § 9-27-341 (Supp. 2021). In making a "best interest" determination, the circuit court is required to consider two factors: (1) the likelihood that the child will be adopted and (2) the potential of harm to the child if custody is returned to a parent. Pine v. Ark. Dep't of Hum. Servs. , 2010 Ark. App. 781, 379 S.W.3d 703. Adoptability is not an essential element but is rather a factor that the circuit court must consider. Tucker v. Ark. Dep't of Hum. Servs. , 2011 Ark. App. 430, 389 S.W.3d 1. Likewise, the potential harm to the child is a factor to be considered, but a specific potential harm does not have to be identified or proved by clear and convincing evidence. Pine , 2010 Ark. App. 781, 379 S.W.3d 703. The potential-harm analysis is to be conducted in broad terms. Id. It is the "best interest" finding that must be supported by clear and convincing evidence. Id. The appellate inquiry is whether the trial court's finding that the disputed fact was proved by clear and convincing evidence is clearly erroneous. J.T. v. Ark. Dep't of Hum. Servs. , 329 Ark. 243, 947 S.W.2d 761 (1997). Credibility determinations are left to the fact-finder. Kerr v. Ark. Dep't of Hum. Servs. , 2016 Ark. App. 271, at 6, 493 S.W.3d 342, 346. Finally, the intent behind the termination-of-parental-rights statute is to provide permanency in a child's life when it is not possible to return the child to the family home because it is contrary to the child's health, safety, or welfare, and a return to the family home cannot be accomplished in a reasonable period of time as viewed from the child's perspective. Ark. Code Ann. § 9-27-341(a)(3).

For her first point on appeal, appellant argues that neither ground found by the circuit court is supported by the evidence. Because proof of only one...