Christine HERNANDEZ, Appellant v. ARKANSAS DEPARTMENT OF HUMAN SERVICES and Minor Children, Appellees
No. CV-15-1069
Court of Appeals of Arkansas, DIVISION III
May 4, 2016
2016 Ark. App. 250
However, we reverse and remand in regard to T.M. because our review of the record indicates no evidence about her adoptability. And, as argued by Miller, the trial court made no finding that such evidence would not have mattered.
Our court has said that “[a]doptability is merely a consideration and not a requirement.” Grant v. Ark. Dep‘t of Human Servs., 2010 Ark. App. 636, at 13, 378 S.W.3d 227, 233. Even so, “[c]onsideration requires evidence ... or at least some finding by the trial court that other aspects of the best-interest analysis so favor termination that the absence of proof on adoptability makes no legal difference.” Haynes v. Ark. Dep‘t of Human Servs., 2010 Ark. App. 28, at 4, 2010 WL 135194. Therefore, under our prior cases, the circuit court‘s best-interest analysis will be insufficient unless there is some evidence regarding adoptability or the court explains why termination is in the best interest of the children regardless of their adoptability. Brown v. Ark. Dep‘t of Human Servs., 2015 Ark. App. 725, at 5, 478 S.W.3d at 275-76. In Haynes, supra, we rejected DHS‘s argument that evidence of adoptability could be found in testimony suggesting that the minor children were persevering in their foster home. Haynes, 2010 Ark. App. 28, at 4. Here, we cannot accept DHS‘s argument that, by implication, the evidence supported the trial court‘s determination that adoption was not ruled out for T.M.
Accordingly, we reverse and remand for proceedings consistent with this opinion.
IV. Abandonment
Miller contends that this court should reverse the trial court‘s finding of abandonment because DHS did not allege abandonment in its petition. Miller is wrong. DHS alleged that the mother abandoned the juvenile, without specifying which child, citing
Affirmed in part; reversed and remanded in part.
Vaught and Hixson, JJ., agree.
Jerald A. Sharum, County Legal Operations, for appellee.
Chrestman Group, PLLC, by: Keith L. Chrestman, attorney ad litem for minor children.
LARRY D. VAUGHT, Judge
Appellant Christine Hernandez appeals the October 2015 order of the Washington County Circuit Court terminating her parental rights to her children S.B.1 (DOB 2-15-09) and S.B.2 (DOB 5-15-11).1 On appeal, Christine argues that there is insufficient evidence to support the trial court‘s decision to terminate her parental rights. We affirm.
The Arkansas Department of Human Services (DHS) filed a petition for dependency-neglect on July 11, 2014, alleging that S.B.1 and S.B.2 were at a substantial risk of serious harm as the result of abuse, neglect, and parental unfitness. An affidavit of Antwain Harris that accompanied the petition stated that DHS had opened a protective-services case on the family in January 2014 after it was discovered that S.B.1 had cuts, bruises, and welts on her body. Harris stated that Christine and her husband, Kevin Hernandez (the children‘s stepfather), had agreed to a protection plan, which included not allowing other adults to live in their home and not leaving the children with inappropriate caregivers. However, according to Harris, since the protective plan had been implemented, four other adults had been living in the home, and two of them slept in the same room as S.B.1 and S.B.2; the children were not being fed, bathed, or clothed; neighbors were feeding the children; Christine did not pick up S.B.1 from school when she was very sick; Christine did not take S.B.1 to school when she was well; the children were kept locked in their room for extended periods; Kevin punished the children “as if they were teenagers” “hit[ting] the children in their hands extremely hard and ground[ing] them“; Christine allowed a mentally disabled child to watch S.B.1 and S.B.2; and there were allegations that S.B.1 had been sexually abused.
On July 24, 2014, DHS filed a petition for emergency custody and dependency-neglect. In a second affidavit of Harris, he added that Christine was in violation of the protective plan because inappropriate adults were still living in the Hernandez home and were the sole child-care providers for the children. The trial court entered an ex parte order for emergency custody that day.
An adjudication order was entered in September 2014. The parties stipulated that the children were dependent-neglected. The concurrent goals were reunification of the family and adoption. Services were offered to Christine. She was ordered to visit the children; contact her caseworker weekly; have a psychological evaluation; participate in individual counseling; not use illegal drugs; submit to a drug-and-alcohol assessment; complete parenting classes; obtain and maintain clean, safe, and stable housing; and demonstrate the ability to protect the children and keep them safe from harm.
After a permanency-planning hearing conducted in May 2015, Christine was deemed to be compliant with the case plan and the trial court‘s orders; however, the court found that she had not addressed the issue that caused removal and that no substantial measurable progress had been made. The goal was set as adoption, and the trial court authorized DHS to file a petition for termination of parental rights.
DHS filed a petition to terminate parental rights, and at the September 2015 termination hearing Christine‘s counselor testified that Christine admitted she had made a mistake in allowing unsafe people to live with and care for her children. Christine‘s treatment included working on setting boundaries and learning to protect the children from people with whom she was not familiar. Christine denied allegations that Kevin had abused S.B.1 and S.B.2.
The psychological evaluations of Christine and Kevin were admitted at the hearing. Christine‘s evaluation revealed that she had a dependent-personality disorder, possibly due to having been sexually abused as a child by her father, her brother, her stepbrother, and her godfather; she had problems with immaturity, denial, and poor judgment; and she “seems to be extremely passive and to tolerate inappropriate friendships and behaviors from others.” Kevin‘s psychological evaluation revealed that he had a personality disorder with narcissistic and antisocial traits; he “seems to be hostile, distrusting, and grandiose“; he demonstrated low levels of warmth and sympathy; and he “appears to view himself as a protector and to deny or minimize his problems with aggression and recklessness.” A case report reflects that Kevin was arrested in September 2014 for aggravated assault after he pointed a gun at a man in a parking lot.
The children‘s therapist, Melissa Bedford, testified that Kevin admitted spanking the children and stated that he used fear to parent them. She testified that the fear-based parenting method was inappropriate because of the children‘s posttraumatic-stress disorder.2 She also said that Kevin resisted her efforts to teach him alternative parenting methods. The therapist stated that S.B.1 feared Kevin and that she looked fearful once when Christine and Kevin picked her up for a visit.
Andrea Emerson, DHS family-service worker, testified that during visitation Christine did not interact much with her daughters. She “pushes the kids to go to Kevin and doesn‘t interact with them. She does tend to just sit there, stare at the wall or look at her phone.” During one visit, Christine cut S.B.2‘s bangs at the hairline. Emerson testified that she did not believe that Christine had remedied the conditions that caused the removal of the children despite the services provided. Emerson further stated that S.B.1 and S.B.2 were doing well in foster care, that the foster parent expressed an interest in adopting them, and that they were adoptable.
The children‘s foster mother, “Diana,” testified that the children‘s behavioral problems had improved and that they are doing very well. However, according to Diana, after visits with Christine and
Christine testified that she would not allow others who were not safe to live with or care for her children. However, she also admitted that she told a DHS worker that her day-care plan, if the children were returned to her, was to have friends of hers, whose last names she did not know, babysit. Christine also told a DHS worker that another friend (with an unknown last name), was going to be moving in with her and Kevin. Christine added that her children were not afraid of Kevin and that he was not mean to them.
Kevin denied telling Bedford that he used fear to parent the children. He admitted spanking S.B.1 once. He denied allegations that the children were not fed or that they feared him. He admitted that he and Christine made a mistake when they allowed a “bad news character” to live with them, but he testified that would never happen again.
The trial court took the matter under advisement and entered a termination order on October 15, 2015. This appeal followed.
The standard of review in appeals of termination of parental rights is de novo, but we reverse a trial court‘s decision to terminate parental rights only when it is clearly erroneous. Wade v. Ark. Dep‘t of Human Servs., 337 Ark. 353, 357, 990 S.W.2d 509, 512 (1999). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a distinct and firm conviction that a mistake was made. Id., 990 S.W.2d at 512. Credibility determinations are left to the fact-finder, here, the trial court. Schaible v. Ark. Dep‘t of Human Servs., 2014 Ark. App. 541, at 8, 444 S.W.3d 366, 371.
In termination cases, at least one statutory ground must exist, in addition to a finding that it is in the child‘s best interest to terminate parental rights; these must be proven by clear and convincing evidence.
Christine argues that the evidence was insufficient to prove that she failed to remedy the cause of the removal. She states that her children were removed from her custody because she permitted inappropriate caregivers to live in her home and care for her children. She contends that she remedied this condition by ordering those caregivers to leave her home. She adds
In this case, the children were removed from Christine‘s custody because she was found to be an unfit parent, which included allegations and/or evidence of physical and sexual abuse; failing to feed, bathe, and dress the children; failing to pick them up from school when they were sick; failing to take them to school when they were well; locking them in their room for extended periods; punishing them like teenagers by striking them and grounding them; and permitting unfamiliar adults and minors to live in her home and care for them. At the conclusion of this case, the trial court found that while Christine partially complied with the case plan and court orders, she remained an unfit parent:
Although [Christine] [has] attended visits, cooperated with DHS, taken parent classes and counseling, this Court finds by CLEAR AND CONVINCING EVIDENCE that [she has] NOT demonstrated an ability to protect these children and keep them safe from harm and [has] NOT demonstrated that [she] can meet these children‘s needs. Based upon the testimony, exhibits and demeanor of the witnesses, this Court has NO DOUBT that if these children were returned to mother ... that the girls would be exposed to more abuse, either physical, sexual or emotional.
Under our de novo review, we hold that the trial court did not clearly err in finding that Christine remained an unfit parent and therefore failed to remedy the conditions that caused removal. In finding that she did not have the ability to care for and protect her children, the trial court relied on her psychological evaluation that concluded that she had problems with immaturity, denial, and poor judgment; was extremely passive; and tolerated inappropriate friendships and behaviors from others. This was demonstrated in several instances.
First, despite having knowledge of Kevin‘s fear-based parenting style and her children‘s negative responses to it, she remained married to him and denied that he caused harm to the children. Second, despite the prohibition against having other adults living with and caring for her children, Christine‘s day-care plan was to have two friends of hers, whose last names she did not know, babysit her children, and she planned to have another friend, whose last name she did not know, move in with her. Finally, Christine exercised poor judgment during visits with the children. She cut S.B.2‘s bangs to her scalp, and she pulled S.B.2‘s tooth and told her that the tooth fairy would not be able to find her at her foster parents’ home. Both incidents caused S.B.2 to become extremely upset.
At the conclusion of the termination hearing the trial court stated, “In [ninety-nine] percent of my cases, I rule from the bench,” but “I am not gonna do a knee-jerk reaction type of ruling.” The court acknowledged that there were numerous exhibits and that it had taken notes of all of the witnesses’ testimony and then took the matter under advisement. In its termination order, the court stated that it considered the testimony, exhibits, and demeanor of the witnesses, and based on that evidence, it determined that Christine failed to remedy the conditions and remained an unfit parent. In the trial court‘s extensive consideration of the evidence, it did not believe Christine and Kevin when they testified that they would not permit unfamiliar people to live with them and care for the children. The court did not believe Kevin when he testified he did not use fear to parent S.B.1 and S.B.2.
Also under the failure-to-remedy ground, Christine argues that the trial court clearly erred in finding that DHS provided meaningful efforts to correct the issues that caused removal. She concedes that DHS provided numerous services but contends that DHS should have provided family counseling.
The record demonstrates that DHS provided individual counseling, psychological evaluations, and drug testing for Christine and Kevin; parenting classes and a drug-and-alcohol assessment for Christine; DNA testing; supervised visitation; home visits; occupational, physical, speech, and developmental therapy for the children; counseling for the children; foster care; and family counseling from January to July 2014. In light of this list of extensive services provided by DHS, we hold that the trial court did not clearly err in finding that DHS made meaningful efforts to rehabilitate Christine and to correct the conditions that caused removal of her children.3
In addition to at least one ground supporting termination,
Christine argues that the trial court clearly erred in finding that terminating her parental rights was in her children‘s best interest. She argues that there was insufficient evidence of potential harm because the evidence demonstrated that she complied with the case plan, she was bonded with the children and they were bonded to her, and she posed no danger to them.4 According to Christine, the trial court‘s best-interest finding was based on speculation and conjecture.
We hold that the trial court did not clearly err in finding that it was in the best interest of S.B.1 and S.B.2 to terminate Christine‘s parental rights. We first note that S.B.1 and S.B.2 have progressed sig-
A parent‘s past behavior is often a good indicator of future behavior. Ford v. Ark. Dep‘t of Human Servs., 2014 Ark. App. 226, at 2, 434 S.W.3d 378, 381. And as stated above, the trial court did not believe Christine when she testified that she would not allow inappropriate people to live with and care for the children. The court did not believe Christine or Kevin when they testified that he did not use fear to parent the kids and that the kids were not afraid of him. The court simply did not believe Christine when she testified that she would protect her children. Christine‘s personality disorders support the trial court‘s conclusion that she would not. We must give due regard to the opportunity of the trial court to judge the credibility of witnesses. Osborne, 98 Ark. App. at 133, 252 S.W.3d at 141.
For all these reasons, we hold that the trial court did not clearly err in finding it was in the best interest of S.B.1 and S.B.2 to terminate Christine‘s parental rights. Therefore, we affirm.
Affirmed.
Gladwin, C.J., and Hixson, J., agree.