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

2022 Ark. App. 213

644 S.W.3d 460

Amber PRESCOTT, Appellant

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

No. CV-21-591

Court of Appeals of Arkansas, DIVISION II.

Opinion Delivered May 11, 2022

Dusti Standridge, 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.

STEPHANIE POTTER BARRETT, Judge

Amber Prescott appeals the Crawford County Circuit Court's termination of her parental rights to her daughters, DP, born June 1, 2017; and AMP, born June 6, 2018.¹ On appeal, Prescott argues that it was not in her daughters’ best interest for her parental rights to be terminated. We affirm.

The Arkansas Department of Human Services (DHS) initially received a referral in November 2019 alleging that Prescott was using methamphetamine, was unable to care for her daughters’ needs, and was leaving the children with elderly caretakers who were not able to properly care for them. Prescott tested positive for methamphetamine, amphetamine, and THC, and a protective-services case was opened. Prescott told DHS that she was living in two different homes at the time, but she refused to tell DHS the addresses, she continued to test positive for illegal drugs, and she failed to attend scheduled intake appointments for drug treatment. On February 22, 2020, Prescott was arrested for third-degree assault on a family member as the result of a physical altercation that occurred between her and her sister in front of the children. On February 25, Prescott tested negative for all illegal substances, and the house in which she was residing was clean and appropriate, but she was arrested that day on charges of felony theft and commercial burglary. DHS exercised a seventy-two-hour hold on the children on February 26 due to Prescott's arrest and because there was no clear plan to post bond; Tyler Prescott, the children's father, informed DHS of his inability to pass a drug test; and there were no family members who were able to provide appropriate supervision, protection, or care for the children. When the family service worker visited Prescott in jail to inform her the children were being taken into care, Prescott told her that foster care was the best place for the children because she was unable to take care of them. DHS filed a petition for dependency-neglect and emergency ex parte custody on February 28; an order granting this request was filed the same day. In the probable-cause order entered on March 4, Prescott stipulated there was probable cause to remove the children and for DP and AMP to remain in DHS custody. DP and AMP were adjudicated dependent-neglected in an order entered on April 24, with Prescott stipulating to the adjudication on the basis of her parental unfitness. Prescott was ordered to obey all orders of the circuit court; submit to a drug-and-alcohol assessment and follow the recommendations; submit to random drug screens; obtain and maintain stable and appropriate housing with functional utilities; make her home available for assessment and home visits; obtain and maintain gainful employment or provide proof of sufficient income to support the children; obtain and maintain reliable transportation; visit the children regularly and demonstrate appropriate parenting skills; resolve her criminal issues; and cooperate with DHS, including keeping DHS informed of her address and telephone number at all times.

A review order was entered on August 13 in which the circuit court ordered DP and AMP to remain in DHS custody because their parents were unfit, and their health and safety could not be protected if returned to them. The circuit court found Prescott had recently obtained employment; had completed her drug-and-alcohol assessment and psychological examination; was about to begin outpatient treatment and counseling; had been more communicative with DHS; had missed some visitation due to communication issues but was appropriate when visitation occurred; and did not yet have appropriate housing.

Another review order was entered on November 16. The circuit court continued the children's custody with DHS because Prescott remained unfit. The circuit court noted that Prescott had obtained new employment at Burger King; had completed her drug-and-alcohol assessment; had an upcoming assessment for outpatient services; had begun seeing a new therapist; continued to miss some visitation but was appropriate while visiting; did not have appropriate housing; had recently been incarcerated; and her participation in the case plan was sporadic.

The circuit court entered a permanency-planning order on March 1, 2021, changing the goal of the case to authorizing a plan for adoption with a concurrent goal of reunification. Custody of DP and AMP remained with DHS. Prescott was found to have not complied with the case plan because her current employment status was unknown, although she had previously been employed by Burger King, Simmons Bank, and Pepper Source; she had not maintained consistent communication with DHS; she was not participating in counseling, parenting classes, or drug rehabilitation; and she had visited DP and AMP only three times during the review period.

DHS filed a petition to terminate Prescott's parental rights on May 21, alleging two grounds: (1) the children had been adjudicated dependent-neglected and had continued out of her custody for a period of twelve months, and despite a meaningful effort by DHS to correct the conditions causing removal, the conditions had not been remedied; and (2) aggravated circumstances—little likelihood of successful reunification. DHS also alleged that it was in the best interest of the children for Prescott's parental rights to be terminated.

After a hearing on July 29, 2021, the circuit court entered an order on September 16 terminating Prescott's parental rights on the basis of both grounds alleged by DHS in its petition to terminate parental rights. The circuit court further found it was in the children's best interest for Prescott's parental rights be terminated, finding they are adoptable, and they would be subjected to potential harm if returned to Prescott's custody due to her continued drug use and lack of stability. This appeal followed.

Termination of parental rights is a two-step process requiring a determination that the parent is unfit and that termination is in the best interest of the children. Williams v. Ark. Dep't of Hum. Servs. , 2022 Ark. App. 162. The first step requires proof of one or more statutory grounds for termination; the second step, the best-interest analysis, includes consideration of the likelihood that the...