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

2022 Ark. App. 124

642 S.W.3d 260

Venson MASON, Appellant

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

No. CV-21-506

Court of Appeals of Arkansas, DIVISION III.

Opinion Delivered March 9, 2022

Jennifer Oyler Olson, Arkansas Commission for Parent Counsel, for appellant.

Ellen K. Howard, Jonesboro, Ark. Dep't of Human Services, Office of Chief Counsel, for appellee.

Casey D. Copeland, attorney ad litem for minor child.

KENNETH S. HIXSON, Judge Appellant Venson Mason appeals from the termination of his parental rights to his seven-year-old daughter, C.M.¹ On appeal, Venson argues that the termination order should be reversed because there was insufficient evidence of statutory grounds and insufficient evidence that the termination was in C.M.’s best interest. We hold that the trial court clearly erred in finding that termination of Venson's parental rights was in C.M.’s best interest. Accordingly, we reverse the order terminating his parental rights, and we remand for further proceedings.

In order to terminate parental rights, the trial court must find by clear and convincing evidence that termination is in the best interest of the juvenile, taking into consideration (1) the likelihood that the juvenile will be adopted if the termination petition is granted; and (2) the potential harm, specifically addressing the effect on the health and safety of the child, caused by returning the child to the custody of the parent. Ark. Code Ann. § 9-27-341(b)(3)(A)(i) & (ii) (Supp. 2021). The order terminating parental rights must also be based on a showing by clear and convincing evidence as to one or more of the grounds for termination listed in section 9-27-341(b)(3)(B). However, only one ground must be proved to support termination. Best v. Ark. Dep't of Hum. Servs. , 2020 Ark. App. 485, 611 S.W.3d 690.

A trial court's order terminating parental rights must be based upon findings proved by clear and convincing evidence. Ark. Code Ann. § 9-27-341(b)(3). Clear and convincing evidence is defined as that degree of proof that will produce in the fact-finder a firm conviction as to the allegation sought to be established. Posey v. Ark. Dep't of Health & Hum. Servs. , 370 Ark. 500, 262 S.W.3d 159 (2007). On appeal, the appellate court reviews termination-of-parental-rights cases de novo but will not reverse the trial court's ruling unless its findings are clearly erroneous. Id. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Id. In determining whether a finding is clearly erroneous, an appellate court gives due deference to the opportunity of the trial court to judge the credibility of witnesses. Id.

This case began on October 8, 2019, when appellee Arkansas Department of Human Services (DHS) filed a petition for emergency custody of C.M. An attached affidavit stated that C.M. had lived with her father, Venson, since birth. The affidavit stated that family-service workers visited the house where they were living and found inappropriate and dangerous circumstances. The family service workers observed several individuals both inside and outside the house, and upon inquiry, Venson stated that he and C.M. slept on the couch. The family service workers saw drug paraphernalia in the house. When the police arrived, Venson threw drugs and drug paraphernalia out the bathroom window. Venson told the family service workers that he smoked marijuana every day "like cigarettes" and admitted that he had used methamphetamine two days earlier. Venson was drug screened and tested positive for methamphetamine, amphetamines, and THC. C.M. told the family service workers that her father smoked "blunts and cigarettes." C.M. further stated that when she gets in trouble, her father pulls her hair, and she pointed to a spot on her head where a patch of hair was thinner. C.M. also showed the family service workers bites on her neck, which she said were from bed bugs.

On October 8, 2019, the trial court entered an ex parte order of emergency custody, and on October 9, the trial court entered a probable-cause order. The trial court entered an adjudication order on November 21, 2019, finding C.M. dependent-neglected due to parental unfitness, abuse, and environmental neglect.² The goal of the case was reunification with the concurrent goal of guardianship or adoption. In the adjudication order, Venson was ordered to remain drug-free and submit to random drug screens, complete parenting classes, maintain safe and stable housing, maintain stable employment, and cooperate with DHS.

The trial court entered a review order on March 18, 2020. In the review order, the trial court found that Venson was partially compliant with the case plan. The trial court found that Venson had completed a drug-and-alcohol assessment and, per the recommendation, had entered a long-term substance-abuse treatment program. The trial court ordered Venson to undergo a psychological evaluation and attend counseling and stated that the goal of the case remained reunification. The trial court also gave Venson visitation with C.M. and ordered that the mother have no visitation until she came before the court, which she never did. Importantly, in a subsequent review order entered on July 6, 2020, the trial court found that Venson had complied with the case plan—specifically that he had employment, was continuing his drug treatment, and was in counseling—and again stated that the goal remained reunification.

On December 9, 2020, the trial court entered a permanency-planning order. In that order, the trial court continued the goal of reunification and again found Venson in compliance with the case plan. The trial court stated that Venson had completed his drug treatment, was maintaining sobriety, had completed a psychological evaluation, was attending counseling, had obtained a driver's license and a vehicle, and was living in a three-bedroom mobile home. The trial court noted in the permanency-planning order that, in light of Venson's progress, the court had authorized a trial home placement that had begun on October 10, 2020.

On December 17, 2020, the trial court entered a fifteen-month-review order. In that order, the trial court stated that the trial home placement had ended³ due to Venson's allowing C.M. to be unsupervised around inappropriate people, including her mother, and in unsafe conditions. The trial court reiterated the particulars of Venson's compliance with the case plan and gave DHS discretion to increase visitation as soon as a safe and viable visitation plan was developed.

A second permanency-planning order was entered on March 29, 2021. In that order, the trial court changed the goal of the case from reunification to adoption. The trial court found:

After considering the evidence, the available permanency planning dispositions, and the juvenile's best interest, health, safety, and welfare, the Court finds that the goal of the case shall be adoption and parental rights will be terminated. The father is not making good decisions and is putting the child in unsafe situations. The father took the child to [North ] Little Rock to see the mother at a motel. This was after the mother was arrested for "cutting her baby daddy to the bone" and spending 64 days in jail. The father was involved in an altercation while the child was on a trial home placement. The victim in the altercation was taken to the hospital for the injuries he suffered. The father took his girlfriend to visit the child after the Department told him it was not appropriate. The juvenile shall remain in the custody of the Department because the juvenile's health and safety cannot be protected by the father if returned to the father.

(Emphasis added.)

On June 16, 2021, DHS filed a petition to terminate Venson's parental rights.⁴ DHS alleged that termination of parental rights was in C.M.’s best interest and alleged the following two statutory grounds. Pursuant to Arkansas Code Annotated section 9-27-341(b)(3)(B)(vii) (a ), DHS alleged that other factors or issues arose subsequent to the filing of the original petition for dependency neglect that demonstrate that placement of the juvenile in the custody of the parent is contrary to the juvenile's health, safety, or welfare and that, despite the offer of appropriate family services, the parent has manifested the incapacity or indifference to remedy the subsequent issues or factors or rehabilitate the parent's circumstances that prevent the placement of the juvenile in the custody of the parent. DHS also alleged, pursuant to subdivision (b)(3)(B)(ix)(a )(3 ), that Venson had subjected C.M. to aggravated circumstances in that there is little likelihood that services to the family will result in successful reunification. The termination hearing followed on July 22, 2021.

On July 30, 2021, the trial court entered an order terminating Venson's parental rights. The trial court found by clear and convincing evidence that termination of parental rights was in C.M.’s best interest, and the court considered the likelihood that the C.M. would be adopted as well as the potential harm of returning her to Venson's custody as required by Arkansas Code Annotated section 9-27-341(b)(3)(A)(i) & (ii). The trial court specifically found:

Termination of parental rights is in the best interest of the juvenile, taking into consideration the likelihood that the juvenile will be adopted if the termination petition is granted. The Court finds that the juvenile is adoptable. There are no barriers to the child being adopted. There is the potential harm to the health and safety of the juvenile caused by returning the child to the custody of the father. The father has completed the ordered services and has checked all the boxes. The only thing keeping the father from his child is his poor parenting decisions. The child was placed on a trial

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