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

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2023 Ark.App. 230

JEANETTE MACIAS APPELLANT v. ARKANSAS DEPARTMENT OF HUMAN SERVICES AND MINOR CHILD APPELLEES

No. CV-22-788

Court of Appeals of Arkansas, Division II

April 19, 2023

APPEAL FROM THE LOGAN COUNTY CIRCUIT COURT, NORTHERN DISTRICT [NO 42PJV-21-39] HONORABLE TERRY SULLIVAN, JUDGE

K Presley Turner, for appellant.

Kaylee Wedgeworth, Ark. Dep't of Human Services, Office of Chief Counsel, for appellee. Dana McClain, attorney ad litem for minor child.

RITA W. GRUBER, JUDGE

Jeanette Macias appeals the order of the Logan County Circuit Court terminating her parental rights to her daughter (MC), born December 5, 2021. On appeal, Macias contends that the Arkansas Department of Human Services (DHS) failed to present sufficient proof that termination was in MC's best interest. Because the specific issues raised by Macias on appeal are not preserved, we affirm.

I. Facts and Procedural History

On December 6, 2021, a protective-services case was opened regarding MC pursuant to Garrett's Law because Macias had tested positive for amphetamines, methamphetamine, THC, and benzodiazepine at MC's birth. On December 8, DHS took custody of MC pursuant to a seventy-two-hour hold, when a hospital nurse reported that Macias had attempted to suffocate MC while alone with her in her hospital room. DHS filed a petition for emergency custody and dependency-neglect on December 13, alleging that MC was dependent-neglected due to inadequate supervision, neglect and parental unfitness. Michael Parham was identified as MC's putative father.^[1] An affidavit of family service worker Marla Nelson (FSW Nelson) supported the petition. The affidavit identified a maternal grandmother, Sarah Nehus, as a relative, and set out that DHS had the following history with Macias. In September 2016, there was an unsubstantiated allegation of abuse for striking a child six or under. A protective-services case was also opened in September 2016 due to the threat of harm involving two of Macias's children, and a foster-care case was opened regarding those same two children in October 2017, both of whom were subsequently placed in the permanent custody of their paternal grandmother. In November 2020, a protective-services case was opened pursuant to Garrett's Law with respect to a third child of Macias, who was subsequently placed in the legal custody of that child's paternal grandmother.

The circuit court entered an ex parte order for emergency custody December 13, 2021, finding that MC should continue in the custody of DHS. The court held a probablecause hearing on December 15 and 17, at which Macias and Parham were present. An order was entered on January 7, 2022, finding that probable cause continued to exist for the emergency order to remain in place and ordering supervised visitation as well as numerous services, including a drug-and-alcohol assessment for Macias. Parham was ordered to submit to genetic testing to determine if he is MC's father.

On February 2, the court held an adjudication hearing via Zoom. Macias appeared from the Logan County jail due to her incarceration there. Parham was also present. On February 7, the circuit court entered an order adjudicating MC dependent-neglected based on parental unfitness due to Macias's drug use, to which she stipulated. The circuit court set a goal of reunification and found that DHS had made reasonable efforts. Macias was ordered to complete a drug-and-alcohol assessment, parenting classes, and a psychological evaluation upon her release from jail. She was also ordered to obtain and maintain appropriate housing, income sufficient to support the family, and reliable transportation. Regarding Parham, the order set out that the genetic test results were pending, but he would be permitted supervised visitation with MC; if Parham was found to be MC's father, he would be a nonoffending parent; and his services would otherwise be identical to Macias's.

On May 18, a review hearing was held. Parham was present. Macias was not. On June 8, a review order was entered finding Macias to be "totally noncompliant with the case plan and orders of the court," because she had not completed any parenting classes or attended any of her appointments for the outpatient classes. Although dates to visit MC were set up, Macias did not attend them or respond to DHS's efforts to contact her; she had tested positive for multiple drugs during the pendency of the case and refused to take drug screens on two separate occasions; and she had been arrested five times since the case was opened.

The circuit court found that Parham is MC's parent and that he had complied with the case plan. Parham was ordered to submit to a ninety-day hair-follicle test. The court also found that DHS had made reasonable efforts. The court concluded that MC should remain in the custody of DHS because Macias was unfit, and MC's health, safety, and welfare could not be protected if she were to be returned to her "parents." The court further concluded that continuation in DHS custody was in MC's best interest, necessary to protect her health and safety, and was the least restrictive alternative. The order continued the goal of reunification with respect to Parham and gave DHS discretion for a trial home placement with him. The court further ordered that DHS was permitted to pursue termination with respect to Macias. A simultaneous review hearing and termination hearing was set for September 7.

DHS filed a petition to terminate Macias's rights only on June 23 and sought authority to consent to adoption and permanent alternate placement of MC. DHS alleged two statutory grounds for termination: subsequent factors under Ark. Code Ann. § 9-27-341(b)(3)(B)(vii)(a) (Supp. 2021) and aggravated circumstances under Ark. Code Ann. § 9-27-341(b)(3)(B)(ix)(a). In support of the subsequent-factors ground, DHS cited the incident that led to DHS taking custody of MC; Macias's previous history with DHS; the findings of the court at the review hearing; Macias's failure to make any progress in the instant case or any prior case despite the provision of numerous services throughout the instant case as well as the previous cases; and her two arrests since the May review hearing and her current incarceration. In support of the aggravated-circumstances ground, DHS pled that, given Macias's total noncompliance with services and court orders, as well as her current incarceration, there was little likelihood that the continuation of services would result in successful reunification. The petition alleged that termination was in MC's best interest.

On September 7, a termination hearing was held regarding Macias, and a review hearing was held regarding Parham. Macias was present and represented by counsel, as was Parham. Also present were DHS counsel, MC's attorney ad litem MC's paternal grandmother, MC's foster parents, DCFS supervisor Pamela Feemster, and the primary caseworker, Brandy Ezell. A court report reflecting that Macias had not had stable housing, income, or transportation, and the previous court orders were entered into evidence.

Ezell testified as follows. She relayed the circumstances under which MC came to be in DHS custody. DHS had offered services to Macias, and she had completed "The Clock is Ticking" video and may have completed her drug-and-alcohol assessment, but she did not complete the recommended outpatient treatment or any other services. Macias tested positive for methamphetamine, amphetamines, THC, and "benzos" on December 17 and 28, 2021, and April 7, 2022, and she refused or could not produce a sample on January 3, April 20, and May 27, 2022. Macias would set up visits and then not show or respond to DHS's attempts to contact her, and she had not seen MC since she was taken into DHS custody. Macias had been charged with multiple crimes since the case was filed, had been incarcerated all but approximately two months since the case was opened, and was currently incarcerated and unable to make bond.

Ezell testified further that she had worked with Macias in the past regarding her other children, none of whom were in Macias's custody, and DHS has never had a case with Macias that resulted in a successful reunification. Macias had not complied, and it was in MC's best interest that Macias's rights be terminated because she had shown no progress toward reunification, and continuing services would be futile. Macias lacked housing, and at one point she was staying with a friend, but that place would not be appropriate for MC because Ezell saw drugs in the ashtrays when she visited there. Macias's continued drug use would be a safety risk to MC and indicated potential future harm.

Regarding Parham, Ezell testified that DHS was not asking for his rights to be terminated. He was offered services and was complying with the case plan and court orders. Parham has had four unsupervised overnight visits; they just started weekend visits, all of which have been going well. Parham's last hair-follicle test was negative for all drugs. The plan was to continue reunification services with Parham, have weekend visitation for the next three weekends, and if those went well, transition to a trial home placement. Parham is married to a woman named Sarah, and there were no issues with her.

At this point, DHS was not trying to place MC for adoption, because DHS was still working with Parham. However, if adoption became the goal, there would be no barriers to MC being adopted. DHS recommended continuing current services with Parham and terminating Macias's rights.

At the conclusion of Ezell's testimony, Macias moved to dismiss the petition, arguing that because DHS was not asking for MC to be adopted, it had not met its burden regarding best interest. DHS...