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

2022 Ark. App. 138

643 S.W.3d 487

Kerri YOUNGER and Christopher Womack, Appellants

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

No. CV-21-510

Court of Appeals of Arkansas, DIVISION IV.

Opinion Delivered March 30, 2022

James & Streit, by: Jonathan R. Streit, for separate appellant Kerri Younger.

Dusti Standridge, for separate appellant Christopher Womack.

Andrew Firth, 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 Yell County Circuit Court terminated the parental rights of appellants Kerri Younger and Christopher Womack to their three children, C.W.1 (born in 2009) and twins, C.W.2 and C.W.3 (born in 2011). The parents have filed separate appeals challenging the sufficiency of the evidence supporting grounds for termination. Womack also argues that the trial court erred in determining that termination of his rights is in his children's best interest. We affirm the trial court's decision as to both parents.

I. Background

The Arkansas Department of Human Services (DHS) removed C.W.1, C.W.2, and C.W.3 from Younger's custody on May 20, 2020. In an affidavit attached to the petition for emergency custody, a DHS family-service worker (FSW) attested that on May 4, someone had reported to the hotline that the children had seen Younger chopping up a white powdery substance with a credit card and ingesting it with a straw. The affidavit also indicated that DHS has been involved with the family since 2016 and that Younger has a history of drug charges for which she is on probation. The children were interviewed at the Children's Advocacy Center in Benton County, and concern was expressed about "the amount of drug information these children had." The FSW eventually reached Younger at her parents’ home. She denied the allegations of drug use and agreed to a drug screen but could not produce a sample, saying that she has kidney disease. The FSW was contacted by Younger's family members, who were said to be fearful about the children's safety due to Younger's drug use. Womack was identified as the putative father. At the time of the removal, Womack was in a drug-rehabilitation program and living with his sister.

Younger was instructed to comply with standard welfare orders. The children were adjudicated dependent-neglected on July 24, 2020, due to (1) parental unfitness as a result of the parents’ drug use, which affected their ability to supervise, care for, and protect the children; and (2) environmental neglect based on the parents’ failure to provide a safe and appropriate home for the children. The trial court ordered Younger and Womack to follow the case plan and court orders; cooperate with DHS and keep DHS informed; watch "The Clock is Ticking" video and complete parenting classes; obtain and maintain stable housing and employment; remain drug-free and submit to random drug screens; and, if requested by DHS, submit to a drug-and-alcohol assessment and a psychological evaluation and attend AA/NA meetings.

The case was reviewed in November 2020. The trial court found that Younger and Womack were "in total noncompliance" with the case plan and court orders and that they were also homeless and unemployed. Among other things, the trial court ordered that the parents would be given only five minutes to log on to attend visitation with their children via Zoom and that they were to submit to a drug screen following the review hearing.

The case was reviewed again in February 2021. The trial court kept the goal as reunification but added a concurrent goal of adoption following termination of parental rights because of the parents’ lack of progress. The trial court found that neither parent had complied with the case plan and court orders, including that they obtain stable housing and income, submit to random drug screens and hair-follicle testing, and stay after the previous hearing to be drug tested. Younger and Womack had submitted to a psychological evaluation, but they continually refused to watch "The Clock is Ticking" video and had not completed all twelve hours of parenting classes. The trial court noted that Younger had missed twenty-eight Zoom visits with the children, nineteen of which were "no-shows," and had been late to an additional seven visits. Womack had missed nineteen Zoom visits with the children, seventeen of which were "no-shows," and had been late to an additional seven visits. The trial court further found that both parents were then incarcerated in Benton County on, among other charges, possession-of-drug-paraphernalia and theft-by-receiving charges and that both parents were already on probation in Oklahoma stemming from drug offenses in 2017. Womack had additional driving-related charges pending in Benton County and had active warrants in Perry and Franklin Counties. Younger was on probation in Pope County from drug charges in 2018. Both parents had legal issues pending.

In May 2021, DHS filed a petition to terminate Younger's and Womack's parental rights to all three children on five grounds under Ark. Code Ann. § 9-27-341(b)(3)(B) (Supp. 2021): (i)(a) & (b) (one-year failure to remedy after removal from custodial and noncustodial parent); (ii)(a) (willful failure to provide significant material support and to maintain meaningful contact); (vii) (subsequent factors or issues); (viii) (sentenced in a criminal proceeding); and (ix)(a)(3)(A) & (B)(i) (aggravated circumstances—little likelihood that services will result in successful reunification).

In a permanency-planning order entered in June 2021, the trial court changed the goal of the case from reunification to adoption following termination of parental rights. The trial court found that the parents had not complied with the case plan and court orders, did not have a stable home, had active warrants, and had felony charges filed against them since the last hearing. In addition, Womack had tested positive for methamphetamine on a hair-follicle test in May. The trial court also noted that "as shown by their testimony today, they do not see a problem with their actions."

A termination hearing was held in July 2021. The trial court heard testimony from both parents, along with FSW Kiley Burge. Following the hearing, the trial court terminated Younger's and Womack's parental rights to the children on at least three grounds, including one-year failure to remedy, subsequent factors or issues, and aggravated circumstances. The trial court found that Burge had offered credible testimony that the children are highly adoptable due to their personalities, ages, and good physical health. The trial court further found that the children would be at risk of potential harm if returned to the parents due to their failure to comply with the case plan, their lack of any stability, and their continuous drug use and criminal activities.

II. Standard of Review

Pursuant to Ark. Code Ann. § 9-27-341(b)(3), an order forever terminating parental rights shall be based on clear and convincing evidence of one or more grounds. Ark. Code Ann. § 9-27-341(b)(3)(B). Proof of only one statutory ground is sufficient to terminate parental rights. Burks v. Ark. Dep't of Human Servs. , 2021 Ark. App. 309, 634 S.W.3d 527. The trial court must also find by clear and convincing evidence that termination is in the best interest of the child, including consideration of the likelihood that the child will be adopted if the termination petition is granted and the potential harm, specifically addressing the effect on the health and safety of the child, caused by returning the child to the custody of the parent. Ark. Code Ann. § 9-27-341(b)(3)(A).

On appeal, termination-of-parental-rights cases are reviewed de novo. Burks , supra . Grounds for termination must be proved by clear and convincing evidence, which is that degree of proof that will produce in the finder of fact a firm conviction of the allegation sought to be established. Id. The appellate inquiry is whether the trial court's finding that the disputed fact was proved by clear and convincing evidence is 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. Bridges v. Ark. Dep't of Human Servs. , 2019 Ark. App. 50, 571 S.W.3d 506. In resolving the clearly erroneous question, we give due regard to the opportunity of the trial court to judge the credibility of witnesses. Id. We must also defer to the superior position of the trial court to weigh the credibility of the witnesses. Id. The trial court is in a far superior position to observe the parties before it. Id.

In deciding whether to terminate parental rights, the trial court has a duty to look at the entire picture to determine how that parent has discharged his or her duties as a parent. Scott v. Ark. Dep't of Human Servs. , 2018 Ark. App. 347, 552 S.W.3d 463. Even full compliance with the case plan is not determinative; the issue is whether the parent has become a stable, safe parent able to care for his or her child. Shaffer v. Ark. Dep't of Human Servs. , 2016 Ark. App. 208, 489 S.W.3d 182. Termination of parental rights is an extreme remedy and in derogation of a parent's natural rights; however, parental rights will not be enforced to the detriment or destruction of the health and well-being of the child. Id.

III. Discussion

A. The Mother

Younger challenges the grounds alleged by DHS, including grounds that we are not convinced that the trial court found and relied on for termination. Because only one ground is sufficient to terminate parental rights, Burks , supra , we will address the subsequent-factors ground. Arkansas Code Annotated section 9-27-341(b)(3)(B)(vii)(a) provides as a ground that other factors or issues arose subsequent to the filing of the original petition for...