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

2021 Ark. App. 193

625 S.W.3d 374

Frances PERRY, Appellant

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

No. CV-20-667

Court of Appeals of Arkansas, DIVISION IV.

Opinion Delivered: April 28, 2021

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.

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

BART F. VIRDEN, Judge

The Mississippi County Circuit Court terminated appellant Frances Perry's parental rights to her two children, S.P. and T.P. On appeal, Frances argues that the trial court erred in terminating her rights because there was insufficient evidence of grounds and because termination was not in her children's best interest. We affirm.

I. Background

On May 1, 2018, the Arkansas Department of Human Services (DHS) filed a petition for emergency custody and dependency-neglect as to S.P. and T.P. In an affidavit attached to the petition, a family-service worker attested that the sheriff's office had called DHS on April 27 to report that, while doing a welfare check, it was discovered that the home in which S.P. and T.P. resided "wasn't in livable conditions." When the service workers went to that home, which belonged to Robert Perry, S.P. and T.P.’s father, they discovered that there was trash piled up in the kitchen, there were dog feces on the floor, and there were no beds for S.P. and T.P., who were then ages thirteen and eight, respectively. Robert was described as "irate" and tested positive for amphetamines and methamphetamine. The children were taken into DHS custody. Frances's contact information was "unknown."

In a probable-cause order dated May 11, 2018, it was noted that Frances was living in Missouri and must come to Arkansas to receive services. She was ordered to comply with standard welfare orders, including that she remain drug-free, submit to random drug screens, obtain and maintain safe and stable housing, obtain stable employment, and cooperate with DHS. On June 20, 2018, the children were adjudicated dependent-neglected based on environmental neglect and neglect due to Robert's drug use. The trial court noted that Frances had not contributed to the dependency-neglect, but it also found that she was not a fit parent for purposes of custody.

In a review order entered September 27, 2018, the trial court noted that Frances had partially complied with the case plan in that she had watched the video "The Clock Is Ticking" and had participated in most visitations; however, Frances was not employed and continued to reside outside of Arkansas where services were difficult to provide. Another review order was entered January 9, 2019, finding that Frances had complied with the case plan and that she was employed. A permanency-planning order was entered May 6, 2019, in which the trial court found that Frances had complied with the case plan and court orders in that she had completed parenting classes, was employed, and had recently obtained housing. The trial court found that, while Frances had tested positive for opiates, methamphetamine, and amphetamines on January 25, 2019, she had since tested negative.

In a fifteen-month review order entered June 21, 2019, the trial court noted that Robert had died. The trial court found that, while the goal at the permanency-planning stage had been reunification or APPLA (another planned permanent living arrangement), the goal of the case should be changed to adoption. The trial court found that Frances had not complied with the case plan in that she "continues to use controlled substances, having tested positive as recently as May 9, 2019"; she was not visiting the children regularly; and she had only recently obtained housing and started substance-abuse treatment. Another review order was entered November 7, 2019, in which the trial court found that Frances had partially complied with the case plan but that she had had minimal contact with the children since the last hearing and was residing out of state "with her paramour." On the same day, DHS filed a petition for termination of Frances's parental rights. The termination hearing was scheduled but continued several times. On July 22, 2020, a hearing was held.

Sharon Washington, a DHS caseworker, testified that Frances lived in Arkansas from September 2018 until January 2019 when she chose to move to Missouri. Washington stated that DHS had offered to assist Frances with locating housing in Arkansas but that Frances had declined. She said that, during the pendency of the case, Frances had had at least seven residences. Washington testified that she had been informed the day before the hearing that Frances had found stable housing through an organization in Missouri, that Frances had not yet moved into the home, and that she had been in transitional housing for the last two or three weeks.

Washington testified that Frances periodically tested positive for methamphetamine and amphetamines, as recently as February 19, 2020. She said that Frances had requested that a hair-follicle test be done to prove the drug test was wrong and that DHS had scheduled that testing. Washington said that Frances did not attend on the scheduled date, that she offered numerous excuses for not being able to take the test thereafter, including that she was living in Tennessee for a month as a result of the COVID-19 lockdown, and that she did not ultimately submit to a hair-follicle test. Washington testified that she could not assist Frances with services across state lines. She said that Frances had told her that she had been receiving services in Missouri but had not provided any documentation, except from the Stapleton Center, indicating that Frances had begun drug treatment.

Washington testified that the foster parents wanted to adopt T.P. but were not as certain when it came to adopting S.P. She stated, however, that there was nothing to prevent both children from being adopted.

Frances conceded that she had had at least nine residences over the last two years. She testified that she had moved away from Arkansas in early 2019 to get away from other drug users but that it had not turned out to be any better in Missouri because she continued to use methamphetamine. Frances said that she had lived with people who "weren't all that great" and that she would not want her children to be associating with those people.

Frances testified that she was living only thirty miles from Blytheville and that DHS had offered to take her from Blytheville to the hair-follicle test she requested. She said that she could not make the scheduled date because her friend did not have the gas to get there or had something to do during that time. She said that DHS had offered to take her to the test on another date that was convenient for her but that she could not find an available date. She testified that she currently goes to Breakthrough Recovery meetings every night and goes to church and Bible study three days a week. Frances said that it had been a couple of months since she had last used her drug of choice: methamphetamine. She later said that she had not used methamphetamine since February 2020. Frances said that she had been receiving services in Missouri "off and on for a year" but that she had only "continuously" participated in the Breakthrough Recovery program since May 2020.

Frances said that Missouri DAEOC (Delta Area Economic Opportunity Corporation) was helping her with the first six months’ rent for her current housing and assisting her to pay her bills. She testified that she is currently living in transitional housing, that her house would be available that day or maybe the next day, and that she has beds and bedding for the children. Frances said that she is ready for S.P. and T.P. to come home with her; however, later in her testimony she stated that she needs "a little bit more time" in recovery away from her "usual crowd" and additional time to get the services she needs to be the mother she wants to be. Frances said that she realizes her children have been in foster care for two years.

Jennifer Towe, employee of the Workforce Development Board of Missouri stationed at Family Counseling Center, testified that Frances had been in and out of the Breakthrough Recovery program for a year, that she had come back in May 2020, and that she had gotten Frances in transitional housing on June 24. She said that Frances was "doing very well actually" and that her last urine drug screen on July 13 was negative. Asked if Frances is ready to take her children home with her that day, Towe testified that Frances needs a couple of weeks. She said that Frances will have housing for six months, which will be reviewed in another six months, but that Frances has to meet requirements in order to maintain the housing; specifically, she must remain drug free. Towe said of Frances, "I do think she's committed to staying on track. I believe so. We had a very long heart to heart." She conceded that Frances does not have a very good track record but said that she thinks anybody can change.

An order terminating Frances's parental rights was entered August 27, 2020. The trial court found the following grounds for termination under Ark. Code Ann. § 9-27-341(b)(3)(B) (Repl. 2020): (i)(a) (twelve-month failure to remedy); (vii)(a) (subsequent factors); and (ix)(a)(3)(A)-(B)(i) (aggravated circumstances - little likelihood). The trial court also found that termination was in the children's best interest. The trial court noted that the children are adoptable and that potential harm could come to them if placed in Frances's custody due to her continued use of methamphetamine, her association with known drug addicts, and her lack of housing and support. Frances timely filed a notice of appeal.

II. Standard of Review

In order to terminate parental rights, a trial court must find by clear and convincing evidence that...