Rice v. Ark. Dep't of Hum. Serv.

688 S.W.3d 491

2024 Ark. App. 278

Amber Michelle RICE and Kevin Robert Sierzchula, Appellants

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

No. CV-23-785

Court of Appeals of Arkansas, DIVISION II.

Opinion Delivered April 24, 2024

APPEAL FROM THE MARION COUNTY CIRCUIT COURT [NO. 45JV-21-28], HONORABLE DEANNA "SUZIE" LAYTON, JUDGE

Jennifer Oyler Olson, Arkansas Commission for Parent Counsel, for separate appellant Amber Rice.

Elizabeth Finocchi, for separate appellant Kevin Sierzchula.

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

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

KENNETH S. HIXSON, Judge

₁Appellants Amber Michelle Rice (Amber) and Kevin Robert Sierzchula (Kevin) (sometimes referred to herein collectively appellants) separately appeal after the Marion County Circuit Court filed an amended order terminating their parental rights to their two children, Minor Child 1 (MCI) (DOB 12-27-18) and Minor Child 2 (MC2) (DOB 08-30-21). Both parents generally allege that the circuit court erred in finding that termination was in the children’s best interest. Kevin additionally alleges that the circuit court erred in finding that statutory grounds existed to support the termination, We affirm,

I. Relevant Facts

₂On September 3, 2021, the Arkansas Department of Human Services (DHS) filed a petition for emergency custody and dependency-neglect of MC1 and MC2.¹ In the affidavit attached to the petition, a family-service worker (FSW) averred that DHS became involved after Amber had tested positive for methamphetamine, oxycodone, opiates, benzodiazepines, and amphetamines at the time of MC2’s birth. During an interview, Amber admitted that prior to going to the hospital, she had taken her prescription medications, and in addition, she took "half of a Xanax," half of an unknown pill, and cough medicine, none of which were prescribed. Amber and Kevin were not married or living together at that time. Kevin submitted to a drug screen and tested positive for THC, methamphetamine, and amphetamines, DHS exercised a seventy-two-hour hold to ensure MC1 and MC2’s safety.

The circuit court granted the petition for emergency custody on September 7, 2021, finding that there was probable cause to believe that the children were dependent-neglected and that it was contrary to the welfare of the children to remain in the Amber’s custody. A probable-cause order was filed on September 8, 2021. The court found that probable cause existed and continued to exist requiring that the children remain in the custody of DHS.

An adjudication order was subsequently filed on January 9, 2022. The parties stipulated and the circuit court found that the children were dependent-neglected. The ₃circuit court found that the allegations in the petition were true and correct and that the children were at substantial risk of serious harm from neglect and parental unfitness. The circuit court found that Kevin did not contribute to the dependency-neglect but was not a fit parent for the purposes of custody or visitation due to his substance abuse. The circuit court declared that Kevin is MC1’s and MC2’s legal father. The circuit court ordered that visitation was to be monitored by DHS; that the parents were to comply with the case plan presented; and that the parents were to submit to a hair-follicle test on or about February 1, 2022. Further, the circuit court ordered monitored visitation for Amber with approval to expand to a trial home placement as long as Amber was not under the influence of drugs or intoxicating substances and working the requirements of the case plan.

On March 9, 2022, the circuit court held a review hearing, and an order was filed on April 6, 2022. The circuit court ordered that the case plan goal remain reunification with a concurrent goal of permanent custody and that MC1 and MC2 remain in DHS custody. The court found Amber in partial compliance with the case plan because she was visiting with the children, was employed, and had housing, but she needed to complete parenting classes and to address her substance abuse through treatment and counseling. The court found Kevin in minimal compliance with the case plan because he had visited only twice since the previous hearing; had no residence; had tested positive on his drug screens; and still needed to address substance-abuse issues, attend counseling, and obtain housing, employment, and stability. Kevin was appointed counsel after he initially declined appointment of counsel at the adjudication hearing. The circuit court continued the prior ₄visitation orders, ordered both parents to submit pay stubs to DHS every two weeks, and ordered Amber to submit to a hair-follicle test within seven days.

On July 13, 2022, the circuit court held another review hearing, and an order was filed on August 10, 2022, in which it continued concurrent goals of reunification and permanent custody and custody of MC1 and MC2 with DHS. The court found that Amber had only minimally complied with the case plan because, while she had housing and was employed, she avoided her hair-follicle test that was ordered at the previous hearing; had adulterated drug screens; had not completed parenting classes; and still needed to complete a drug-and-alcohol assessment. The court found that Kevin had made only minimal progress to date and still needed to obtain suitable housing and address his substance abuse; had not followed through with outpatient treatment for substance abuse; and was still testing positive for illegal substances. The circuit court ordered Amber and Kevin to attend two NA/AA meetings a week and provide sign-in sheets by noon each Monday and to provide paycheck stubs by noon each Monday. Amber was ordered to enroll in parenting education within seven days; submit to a hair-follicle test or face contempt; and provide her driver’s license to DHS within twenty-four hours. Additionally, the circuit court found DHS had made reasonable efforts and continued its prior orders as to visitation.

On October 26, 2022, the circuit court held a permanency-planning hearing, and an order was filed on December 3, 2022. The circuit court continued the goal of reunification with a concurrent goal of permanent placement with a fit and willing relative and ordered that MC1 and MC2 remain in DHS’s custody. The circuit court also found Amber in partial ₅compliance with the case plan because she had been attending AA/NA meetings since July, had completed parenting classes, was visiting the children, and had housing; however, she was unemployed with no form of transportation, had not completed a drug-and-alcohol assessment, and was positive for methamphetamine on her hair-follicle test. The circuit court found Kevin in partial compliance with the case plan because he had tested negative on his drug screens; had employment; had completed parenting classes; and had been visiting and attending NA/AA meetings, but he had not enrolled in counseling. Further, the circuit court found that DHS had made reasonable efforts. The circuit court, slightly altering its earlier order, authorized expanded visitation with the added condition that Amber complete a substance-abuse and mental-health assessment. The circuit court again ordered both parents to complete a hair-follicle test prior to the next hearing.

On January 11, 2023, the circuit court held another hearing, and an order was filed on March 28, 2023. The circuit court ordered Amber and Kevin to submit to hair-follicle testing for substance abuse by the end of the week and to provide NA/AA sign-in sheets and pay stubs to DHS by noon on Mondays. Amber was ordered to complete her previously ordered drug assessment. The circuit court further stated that a contempt hearing would be scheduled if the parents failed to follow court orders.

A fifteen-month review and contempt hearing was held on April 12, 2023. An order of contempt was subsequently filed on April 13, 2023, because Amber failed to submit to hair-follicle testing. A fifteen-month review and contempt order was also filed on May 6, 2023. The circuit court changed the goal of the case to adoption and authorized DHS to ₆file a petition for termination of parental rights. Specifically, the circuit court made the following findings regarding appellants’ compliance:

Drug tests show that parents are continuing to use illegal substances as pattern throughout case. Despite the Court’s multiple recess hearings, the Mother has not complied with the court ordered hair follicle test for seven months. Mother has not engaged in mental health treatment. Mother has no driver’s license or reliable transportation. Parents are worse off now than when the case began. Father has new criminal drug charges. He has not attended NA and provided proof of attendance. He continues to test positive for multiple illegal substances. He has no stable housing. Mother is not attending NA meetings, has missed visits since visits were moved back to DHS office.

Amber was found in contempt for willfully failing to submit to hair-follicle testing for substance abuse and was sentenced to serve ten days in jail. Both parents were ordered to submit to hair-follicle testing within thirty days.

DHS filed a petition for the termination of parental rights on June 9, 2022, alleging several grounds for termination against appellants under Arkansas Code Annotated section 9-27-341(b)(3)(B) (Supp. 2023), including the failure-to-remedy, other-subsequent-factors, and aggravated-circumstances grounds. After a series of continuances, the final termination hearing concluded on July 3, 2023.

At the termination hearing, Kevin testified that he had been living with a friend for the last three months. Although he admitted that he had missed visits in the past, he explained that he had been attending visits within the last couple of months. He did not have a working vehicle but instead relied on friends or...