Price v. Ark. Dep't of Human Servs. & Minor Child

1

2023 Ark.App. 140

BRITTANY PRICE APPELLANT v. ARKANSAS DEPARTMENT OF HUMAN SERVICES AND MINOR CHILD APPELLEES

No. CV-22-642

Court of Appeals of Arkansas, Division I

March 8, 2023

APPEAL FROM THE JEFFERSON COUNTY CIRCUIT COURT [NO. 35JV-20-324] HONORABLE EARNEST E. BROWN, JR., JUDGE

Tabitha McNulty, Arkansas Commission for Parent Counsel, for appellant.

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

Dana McClain, attorney ad litem for minor children.

KENNETH S. HIXSON, JUDGE

Appellant Brittany Price appeals from the termination of her parental rights to her sons, Minor Child 1 (MC1) (DOB 08-30-12) and Minor Child 2 (MC2) (DOB 03-31-14).^[1]On appeal, Brittany argues that the evidence failed to demonstrate that termination of her parental rights was in the children's best interest. We affirm.

I. Relevant Facts

On December 28, 2020, appellee Arkansas Department of Human Services (DHS) filed a petition for dependency-neglect and emergency custody of MC1 and MC2.^[2] In the affidavit attached to the petition, DHS stated that it had a lengthy history with the family, which included multiple services that were provided to Brittany in 2014 after MC2 had tested positive at birth for cocaine and marijuana. The affidavit stated that on December 24, 2020, DHS received a call from the police stating that Brittany was being arrested at her home for three counts of endangering the welfare of a minor, leaving MC1 and MC2 without a caretaker. It was reported that Brittany was smoking a cigarette dipped in PCP or formaldehyde, which created a strong odor and a "bunch of smoke" in the presence of the children. There were also open containers of alcohol present.

On December 29, 2020, the trial court entered an ex parte order for emergency custody of MC1 and MC2. A probable-cause order followed on January 12, 2021. The probable-cause order, which listed Michael Layton as MC2's putative father, gave Brittany supervised visitation with both children and gave Michael supervised visitation with MC2. The probable-cause order noted that Michael had requested to be considered for placement of MC2.

On April 1, 2021, the trial court entered an adjudication order finding that MC1 and MC2 were dependent-neglected based on Brittany's drug use, her failure to appropriately supervise the children, and her arrest, which placed the children in a dangerous situation. In the adjudication order, the trial court found that DNA results showed Michael to be MC2's father and that Michael did not contribute to MC2's dependency-neglect because MC2 was not in his custody at the time of the incident that caused removal. The goal of the case was established as reunification, and DHS was ordered to provide reunification services.

After a review hearing held on July 1, 2021, the trial court entered a review order on September 2, 2021. In the review order, the trial court found that Brittany had partially complied with the case plan but needed to continue in her counseling and needed to demonstrate a sustained period of sobriety. The trial court noted that on the day of the review hearing, Brittany tested negative for illegal drugs but tested positive for alcohol. The goal of the case remained reunification.

Another review hearing was held on August 9, 2021, with a review order entered on September 22, 2021. In that review order, the trial court found that the goal of the case remained reunification with the concurrent goal of relative placement.

After a permanency-planning hearing held on December 16, 2021, the trial court entered a permanency-planning order on February 9, 2022. In that order, the trial court noted that on the day of the hearing, Brittany tested negative for illegal drugs but positive for alcohol. The trial court found that Brittany had partially complied with the case plan but had not been attending her outpatient substance-abuse counseling or her mental-health counseling. In the permanency-planning order, the trial court stated that MC2 was allowed to begin a trial home placement with his father, Michael Layton.

A fifteen-month permanency-planning hearing was held on March 17, 2022, and an order was filed on July 7, 2022. The trial court noted that Brittany had tested positive for PCP on a March 2, 2022, court-ordered hair-follicle test. The trial court found that Brittany had not complied with the case plan; had not been compliant with making herself available for random drug screens; had not been participating in mental-health and substance-abuse counseling; and continued to exhibit highly erratic and disturbing behavior. In the fifteen-month permanency planning order, the trial court changed the goal of the case to adoption.

On April 13, 2022, DHS filed a petition to terminate Brittany's parental rights to MC1 and MC2. In its petition, DHS alleged that Brittany's parental rights should be terminated based on the statutory grounds of failure to remedy and subsequent factors. See Ark. Code Ann. § 9-27-341(b)(3) (Supp. 2021). The termination hearing was held on June 7, 2022.

The June 7, 2022 hearing was a combined hearing consisting of a permanency-planning hearing involving MC3 in the separate dependency-neglect case and the termination hearing involving MC1 and MC2 in the present case. In the permanency-planning portion of the hearing, the testimony showed that MC3 was thriving in the placement of a relative, Evelyn Terry. At the conclusion of the permanency-planning portion of the hearing, the trial court changed the goal of the case in the case involving MC3 to adoption.

DHS family-service-worker supervisor Kamelia Edwards testified at the termination hearing involving MC1 and MC2. Ms. Edwards testified that MC1 was presently in the care of Evelyn Terry, where MC1's youngest brother MC3 was also placed. Ms. Edwards stated that MC2 was placed with his father, Michael Layton. Ms. Edwards stated that both of these relative placements were appropriate and that both MC1 and MC2 were doing well and making progress. Ms. Edwards stated that MC1 is adoptable and that Ms. Terry had expressed the desire to adopt him.

Ms. Edwards testified that she recommended termination of Brittany's parental rights because of Brittany's substance abuse, mental-health issues, and inability to protect the children. Ms. Edwards stated that Brittany had tested positive for PCP and methamphetamine on March 2, 2022, and that Brittany tested positive for methamphetamine on the day of the termination hearing. In addition, Brittany was arrested on February 19, 2022, and charged with possession of methamphetamine and cocaine, possession of drug paraphernalia, and criminal use of a prohibited weapon. Those charges remained pending as of the termination hearing. Ms. Edwards stated that Brittany had initially completed a drug-treatment program but that, despite her persisting drug problem, Brittany has refused any further drug treatment.

Ms. Edwards further testified that Brittany has untreated mental-health issues, including reactive attachment disorder, which causes her to react and respond inappropriately. Ms. Edwards stated that Brittany had stopped going to counseling to address these issues. Ms. Edwards stated that Brittany's visitation with the children was sporadic and that when Brittany did visit, she exhibited erratic behavior that made the children uncomfortable and frightened MC1. Ms. Edwards described Brittany's actions during visitation as follows:

The up and down behavior, emotions, pacing, her delivery. Like I said, a lot of conversations go on in the visitation and we're not sure who Brittany is talking to. She's rambling about things that have happened from her childhood to current. I can probably tell you everything that she experienced just about in her life because she just talks. You don't have to say anything back. She's not necessarily looking at you. She's looking somewhere else and she's just talking.

Ms. Edwards testified that Brittany had "sabotaged every effort that myself and whomever possibly tried to give her to make it our fault and not hers." Ms. Edwards stated that the problems that caused removal of the children had not been remedied despite the offer of DHS services and that if the children were returned to Brittany, it would be traumatic and that "their safety would definitely be in jeopardy."

Evelyn Terry was the only other witness to testify at the termination hearing. Ms. Terry testified that MC1 had been in her custody for almost a year and a half and that he was "doing wonderful." Ms. Terry stated that MC1 had expressed fear about the possibility of being returned to his mother. Ms. Terry stated that if Brittany's parental rights were terminated, she was interested in adopting MC1.

At the conclusion of the termination hearing the trial court announced that it was going to terminate Brittany's parental rights based on the evidence presented. The trial court also announced that it was going to grant permanent custody of MC2 to Michael Layton.

On July 22, 2020, the trial court entered an order terminating Brittany's parental rights to MC1 and MC2. The trial court found by clear and convincing evidence that both statutory grounds alleged in the petition supported termination, and the court made these specific findings:

That the juveniles have been adjudicated by the Court to be dependent-neglected and have continued to be out of the custody of the parent for twelve (12) months and, despite a meaningful effort by the department to rehabilitate the parent and correct the conditions that caused removal, those conditions have not been remedied by the parent. Specifically, the Department took a 72-hour hold on the juveniles on December 24, 2020. At the time of the removal

...