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

2022 Ark. App. 175

643 S.W.3d 856

Tina SCHULTZ, Appellant

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

No. CV-21-511

Court of Appeals of Arkansas, DIVISION III.

Opinion Delivered April 20, 2022

Elizabeth J. Finocchi, for appellant.

Andrew Firth, Ark. Dep't of Human Services, Office of Chief Counsel, for appellee.

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

PHILLIP T. WHITEAKER, Judge

Tina Schultz appeals a Carroll County Circuit Court order terminating her parental rights to three of her children, NMFS, NMS, and JLS.¹ She argues that there was insufficient evidence to support either the statutory grounds or the best-interest findings and that the court erred in the admission of the CASA report. We find no merit in her arguments and affirm.

I. Facts and Procedural History

Tina Schultz and Darin Sharpe are the biological parents of NMFS, NMS, and JLS.² In May 2019, the Arkansas Department of Human Services opened a protective-services case after NMS received burns while under Darin's supervision. Darin, who was high on methamphetamine when the incident occurred, was arrested and jailed, resulting in a no-contact order in place between him and NMS.

In August 2019, while protective services were being provided, Tina's family contacted the Department with concerns regarding the safety of the children. They reported that Tina was using methamphetamine, that she had recently left the children in the care of a registered sex offender after an attempted suicide, and that NMFS had "red welts" on her vagina.³ The Department further learned that a family member had been providing clear urine for Tina so that she could retain custody of the children in the protective-services case. Darin was not available as a placement alternative due to his continued incarceration and pending no-contact order. As a result, the Department exercised a seventy-two-hour hold on the children and filed a dependency-neglect petition.

In October 2019, the court found the children dependent-neglected as a result of neglect and parental unfitness. More specifically, the court found that Tina had been committed for mental-health reasons as a result of an attempted suicide; had left her children with a registered sex offender who was using illegal drugs; had failed to get appropriate medical treatment for NMS; and that both NMS and JLS tested positive for methamphetamine. The court ordered the children to remain in the custody of the Department, ordered the Department to provide services, and set the goal of the case as reunification with a concurrent goal of adoption.⁴

The court continued to monitor the progression of services and parental compliance. At review hearings, the court found that Tina was in partial compliance with the case plan, found that the Department had made reasonable efforts to provide services and achieve reunification, and ordered that custody of the children would continue with the Department.

The court conducted its first permanency-planning hearing in June 2020. The court found that Tina was complying with the case plan, was making significant measurable progress, and was diligently working toward reunification. As a result, the court ordered trial placement with Tina. The court conducted a second permanency-planning hearing in August 2020, wherein it continued the trial placement with Tina. The trial placement ended, however, in September 2020 after the Department discovered that Tina had lost her driving privileges, had failed to take the children to scheduled counseling sessions, and was sharing a residence with Quintin Hays, who had a pending aggravated-robbery charge against him.⁵ Tina was advised that she could not regain custody of her children if she continued to live with Quintin.

In February 2021, the court conducted its third permanency-planning hearing.⁶ The court found that the Department had made reasonable efforts to provide family services and had provided services, such as individual therapy, a drug-and-alcohol assessment, random drug testing, and mental-health and substance-abuse counseling. The court further recognized that Tina had participated in these services provided by the Department and had also obtained her driver's license. However, she had been inconsistent with her employment; had attended some, but not all, of the child/parent psychotherapy sessions; and had continued to reside with Quintin. Furthermore, the court noted that her house was cluttered and unclean and not suitable for the children. As a result, the court found that Tina had not shown significant progress toward the case plan and changed the goal of the case from reunification to termination of parental rights.

In April 2021, the Department and the attorney ad litem (AAL) filed a joint petition to terminate Tina's parental rights alleging three statutory grounds for termination grounds as to Tina: twelve-month failure to remedy; subsequent other factors; and aggravated circumstances—little likelihood of successful reunification.⁷ The court conducted a hearing on the petition, which was held over a period of two days in June and July 2021. The court heard from numerous witnesses concerning the services provided by the Department as well as Tina's stability and compliance with the case plan. Much of the testimony and evidence centered on Tina's ongoing relationship with Darin and her parental choices concerning Quentin.

After hearing all the evidence, the circuit court entered an order terminating Tina's parental rights. The court found that it was in the best interest of the children to terminate Tina's parental rights and that the Department had presented sufficient evidence to support all three statutory grounds for termination: twelve-month failure to remedy; subsequent other factors; and aggravated circumstances—little likelihood of successful reunification. Tina filed a timely appeal of the termination order.

II. Standard of Review

A circuit court's order terminating parental rights must be based on findings proved by clear and convincing evidence. Ark. Code Ann. § 9-27-341(b)(3) (Supp. 2021). 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 circuit 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 circuit court to judge the credibility of witnesses. Id.

III. Analysis

A. Statutory Grounds

In order to terminate parental rights, a circuit court must find by clear and convincing evidence one or more of the grounds for termination listed in section 9-27-341(b)(3)(B). Tina's first challenge is to the sufficiency of the evidence to support the statutory grounds for termination, claiming the Department failed to make reasonable efforts to rehabilitate the family. More specifically, she argues that not only did the Department not make reasonable efforts to support rehabilitation, it actually undermined her progress toward rehabilitation by focusing on the negative and not identifying the positive, including her lengthy sobriety. Her argument fails for two reasons.

First, the circuit court determined that all three statutory grounds pled by the Department had been proved and supported termination. Tina, however, challenges only the subsequent-other-factors ground for termination. We have held that only one ground must be proved to support termination, Reid v. Ark. Dep't of Hum. Servs. , 2011 Ark. 187, 380 S.W.3d 918, and when, as here an appellant fails to challenge the circuit court's independent, alternative grounds for its ruling, we will not reverse. Carson v. Ark. Dep't of Hum. Servs. , 2019 Ark. App. 399, 2019 WL 4581135.

Second, the court terminated on the ground of aggravated circumstances. The ground of aggravated circumstances does not require the Department to prove that meaningful services toward reunification were provided. See Cloninger v. Ark. Dep't of Hum. Servs. , 2020 Ark. App. 282, 2020 WL 2203691 ; Willis v. Ark. Dep't of Hum. Servs. , 2017 Ark. App. 559, 538 S.W.3d 842. Thus, her argument regarding the Department's alleged failure to provide services does not affect the court's finding on this statutory ground.

In the Juvenile Code, "aggravated circumstances" exist when "a determination has been or is made by a judge that there is little likelihood that services to the family will result in successful reunification[.]" Ark. Code Ann. § 9-27-303(6)(A) (Supp. 2021). Here, the children were removed from Tina's care as a result of a finding of parental unfitness. During the twenty-four months that the children were in the custody of the Department, Tina was provided a plethora of services. While Tina argued below and continues to argue on appeal that the Department and the CASA volunteer actively worked against rehabilitation, the circuit court repeatedly entered orders prior to the termination hearing that the Department had made reasonable efforts toward family reunification, albeit over counsel's objection. The court was presented further evidence that the children had been in the Department's custody for the majority of their lives, that the children had to be removed from Tina's care on three separate occasions, and that Tina had still not shown that she was in a position to make decisions for the benefit of her children.

Essentially, Tina is asking this court to reweigh the evidence in her favor and to reach a result contrary to that of the circuit...