*1 of HEALTH DEPARTMENT v. ARKANSAS LONG Jamie & HUMAN SERVICES S.W.3d 529 237 05-306 CA Arkansas Court of Appeals 28, 2006 delivered Opinion June 23, 2006.] denied August [Rehearing Moak, for DeeNita D. appellant. Counsel, Turner, of Chief appellee. Allen Office
Gray Josephine Linker from an Long appeals Hart, Judge. Jamie terminating Circuit Court of the Pulaski County order to her K.L. and M.S. son rights daughter parental appeal, *2 that the trial court erred sufficient evidence to argues finding terminate her reverse We and remand. rights. parental 27, 2003,
On Arkansas February of Human Department Services took children into (DHS) after she was custody on time, K.L., arrested to her use of drug charges relating methamphetamine. M.S., old, At the and were five and two years 25, 2003, the children respectively. April adjudicated dependent-neglected. was not
Initially, Long compliant requirements the case At the first trial review the court plan. found hearing, had not with its orders and case Long complied the services in that she had not submitted to the court-ordered psychological evaluation, classes, failed to no attended complete parenting longer NA/AA at Celebrate arrived late for visitation Recovery, and, with her DHS, children to the direction of contrary brought note, to the however, visits. The trial did court people that Long assessment, visitation,” did have a and-alcohol “some drug- 30, “some random 2003, screens.” At an October review the trial court found that still Long completed classesand had not the visited children since parenting September 8, 2003. The court trial ordered to continue to Long submit to screens, random visit the children and “continue “regularly,” intensive substance abuse It outpatient treatment.” also imposed “have a stable home requirement Long employment demonstrate that she can for her kids.” properly provide 26, In 2004, its order, February the permanency-planning court trial found that the with court orders and complied case and it continued to order plan, reunification Addi- services. the court awarded tionally, weekend visitation. 19, 2004, On March the trial court an entered ex emergency order the parte visitation to twice modifying at the DHS weekly 16, 2004, offices. The visitation was on March changed after the mother, foster Mrs. informed Cherry, DHS that children had not been returned time from weekend visit. This order remained in even informed place DHS that the late though return was caused due to hospitalization complications her pregnancy. At the next held on permanency-planning hearing, May 2004, the trial court DHS’s rejected recommendation that reuni- fication remain the and sua goal ordered a termination sponte order, In that hearing. “I stated: understand judge she’s fact that she’s about the pregnant I am concerned pregnant. that, but mom I’m not unsympathetic some having problems. that she should have understood seem to priorities does not noted that Long She further on this case.” have directed she had been sheets that treatment sign-in reunification services Nonetheless, ordered the trial judge submit. to continue. Paul 15, 2004, Dr. termination hearing,
At the September administered a that he psycho- to testified Deyoub, psychologist, admitted using He stated that Long evaluation Long. logical times,” alco- “some “four or five marijuana, methamphetamine hol,” told him she currently medication. pain Mario, named whom man from Mexico planned with a living that she had He noted her DHS case was over. when *3 marry neck, he of her but on both sides opined Mario’s name tattooed it reflected in that consistent with her that it was personality further Dr. and decision making. Deyoub poor impulsiveness reflected with Mario also poor that involvement Long’s opined to Dr. for her.” According in that he was a “big priority judgment dis- of revealed some degree personality testing Deyoub, Long’s Histrionic, Borderline, dis- orders, and traits of Dependent with that had an was 88. He noted Long indicated. I.Q. orders life, her to a abandoned group parents unstable having her reason” after six “for no parents home for years apparent Later, her mother when she was tried to live with divorced. Long fifteen, treatment at Rivendell and Turning received in-patient seventeen, Point, had, make “it as best she since tried to and age children. but had two that failed produced can with relationships” reunification was guarded that her “very He prognosis opined trend Dr. noted a . . not Deyoub and . although impossible.” poor that and stated on males relationships past dependence is all idea what this individual an unknown. I have no “Mario is about, but factor that I don’t know that’s one more about. So just has to see who is this that Court person.” Kucala, counselor, certified a licensed play therapist, Jan Youth and Families the Centers for manager program K.L., on that counseled beginning testified she Janu- Jacksonville the child had “a lot of anxiety stated that 2004. She ary to what was matters and concern about going about worry family her, her mother.” Ms. Kucala to to what was happening happen much more aware that she was that had made stated progress, that she about mistakes that she was K.L.’s “very open” feelings, made, and that she showed “a lot into how insight” children from her has with separation damaged relationship them and what she would need to do that to repair relationship. that, times, Ms. Kucala noted well at there was as confusion as who K.L.’s was and that case worker noted there were several for which DHS had failed the child. She appointments bring K.L., out of home was stressful” on reported being “very care, that K.L. felt there was a because in foster she was and that “punished” bond” between K.L. her mother. “very strong Further, Ms. Kucala that if opined Long’s rights terminated, will occur “regression probably part,” [K.L.’s] while she declined to offer an termination opinion regarding because her did not them make this agency encourage type she did state that she “the had been judgment, thought family and K.L. had making not been “in progress,” prepared any way” Mario, for termination of her mother’s rights. parental Regarding limited, Ms. Kucala stated his involvement had been but she was aware that and Mario had an would agreement be able to home children while Mario stay supported Nonetheless, Mario affirmed that commitment. family, stated that she did not think that it be would prudent put children in their mom’s home but noted “totally today,” that the “kids are bonded to her” and she did believe very that the reunification “would be a process recom- long-term thing.” mended that the court order visitation. unsupervised that she testified lived in a one-bedroom currently but she had apartment, a transfer signed management *4 to fees allow her to into a company move paid larger apartment that would accommodate the return of her children. She stated that Mario’s take-home four to five hundred pay dollars per week. She admitted to for testing positive opiates previous but attributed it August, to the 3 that she had been Tylenol She admitted that she moved to prescribed. for three or Georgia 2003, four months in but when she found that her case transferring there would be a she “long returned to process,” Arkansas. She stated that she moved there because Mario was able to make more Nonetheless, while she money. she claimed that she away, called her children regularly. her substance-abuse
Regarding claimed that problems, Long she was not “addicted in controlled any substance” way any she when had her assessmentbecause she had been in for just jail out, two-and-a-half months. Since she went to Celebrate getting for a month AA every for meetings day Recovery drug meetings, level,” and UAMS on the “to busy doing things positive keep also claimed to individual She Adult for counseling. Psychiatry Memorial at Saline Hospital. have attended Narcotics Anonymous the documentation admitted that she was slow provide Long her sessions, but claimed no attendance at the various therapy noted her that her documentation Long one told inadequate. five screens since she had to take May been assigned 2004, one, all and while she missed August year, except had been 3 as when she was taking prescribed, screening Tylenol negative. a bit that the caseworkers changed noted quite
Long case. recalled that of her She Angela Haynes, during Carolyn pendency Twillie, Williams, and Tamika had all been Bonnie Floyd times, as and she stated that confusion her case at various assigned the case had affected her visitation. She to who was handling who her caseworker was at out recounted having difficulty finding several times. key she had a with Mario stated that long-term
Long relationship her kids back and that once Cirilo they planned marry got home. She claimed that she was hard to working very get Nonetheless, “a children back. she admitted that Mario was to have and she that it was bad try disputed judgment priority,” stated that while her children in DHS custody. baby Long had failed to her children back to the foster- the reason she get weekend visit was that she was home on time after her last parent’s claimed that she DHS caseworker hospitalized. provided with “some she had been in Williams Carolyn proof’ hospital, “the also conceded that she but admitted it was one.” wrong to DHS that she had documentation proving at McDonald’s. employed Tamika one the four caseworkers that had worked Floyd, children, was aware of the testified require- receive treatment and that she ment that she provide proof treatment; that she was that she submit to random getting “clean”; that she was that she maintain steady drug testing showing and that she attend NA and stable employment housing; of attendance. stated that DHS Floyd provide proof tested August opiates positive pro- positive 18. stated that also missed one poxyphene May Floyd *5 screen, claimed that she “never “she drug claiming forgot.” Floyd treatment.” admitted saw Floyd any proof [Long] completed drug that sheets for NA in Long gave sign-in meetings August, July, and told her that the sheets for were at her May, sign-in June However, sister’s house. claimed that she was able to Floyd only “confirm” attendance at two and that she had no July that attended individual further proof Long counseling. Floyd admitted that she received a letter from father that Long’s verifying he take care but never received paid Long grandmother, stubs.” “pay stated that with the case
Floyd Long “began comply” work, but noted that some elements still needed requirements, that she maintain a stable home including requirement stated one-bedroom -Floyd Long’s apartment environment-— to accommodate her children. large She further stated enough that the NA sheets are “somewhat sign-in questionable.” Regard- the services that DHS listed “a ing Long, Floyd assessment, and alcohol services with counseling [K.L.], psycho- assessment, and random screens.” She also claimed logical services were “offered” with visitation transportation along children, Care, “services” for atM.S. Pediatric Specialty care, foster and medical and dental services. stated that she Floyd worker, believed that knew her case but admitted Long that there was considerable of the case several workers in the shuffling among office. individual stated that Regarding counseling, Floyd worker, Williams, had told a case previous receiving at UAMS and “there’s no notation that the counseling counseling was deficient and more was needed.” also stated counseling Floyd that she visited current one-bedroom and she apartment, saw that on, there was “food in the refrigerator, lights clean,” it was furnished.” “fully order,
In its termination the trial found that “there is judge that these would be harmed potential juveniles by continuing contact with the mother.” It further noted that there was “great for emotional harm to potential these if had contin- juveniles they ued contact with a mother who has not them first and placed foremost in her so that she can be there for them all priorities day, for all every their needs.” day, provide the trial Additionally, found “has not judge demonstrated that she can remain free, have and make stability housing employment, decisions do not affect appropriate negatively [the children’s] well She noted deficiencies in the being.” documentation that was ordered provide.
7 that the trial court erred in Long argues finding appeal, evidence to terminate her that there was sufficient parental rights. that she with the orders of She contends “substantially complied” the the court and corrected the that caused removal problems to ten of her children. notes that she was ordered submit screens, and she never tested positive methamphetamine, the use caused her children to be taken into of which custody. classes, further notes that she attended visi- completed parenting evaluation, tation, in a participated psychological completed assessment, and alcohol attended outpatient drug counseling UAMS, at attended individual at Celebrate counseling Recovery, and obtained a to live and an means of place adequate support. assertsthat she met the three her at the objectives required children, visit her in continue permanency-planning hearing: with her and attend AA NAor once a therapy daughter, meetings week and documentation of those to the case- provide meetings worker.
The
for termination
must be
grounds
parental rights
clear and
evidence. M. T. v. Arkansas
proven by
convincing
Dep’tof
Servs.,
302, 305,
177, 179
Human
58 Ark.
952 S.W.2d
App.
(1997).
When the burden of
fact is
clear and
proving
disputed
by
evidence, the
is whether the trial
convincing
court’s
question
appeal
the
fact was
clear and
finding
disputed
proved by
erroneous,
evidence is
due
to the
of the
convincing
clearly
giving
regard
of the trial court to
the
opportunity
judge
credibility
when,
witnesses. Id. A
is
erroneous
there
finding clearly
although
it,
is evidence to
the
court on the entire
support
reviewing
evidence is left with a definite and firm conviction that a mistake
Servs.,
has been made. Dinkinsv. Arkansas
Human
Ark.
344
Dep’tof
207,
It is clear that Long substantially complied the court. As the trial requirements imposed upon judge order, recites in her “three do main required things: attend AA or NA once week and documen per provide month; tation to the caseworker make her to visit every priority fail; the without continue so juveniles therapy [K.L.] that she could learn how to alleviate her help anxiety [K.L.] better with her issues.” With the parent exception [K.L.] documentation, fulfilled all of these providing requirements. the Given has made in the extraordinary progress Long fulfilling court, of the evidence the requirements overwhelming very children, bond between mother and from strong K.L.’s that the child would we hold that the “regress,” therapist trial court was erroneous continued clearly finding contact with her children would be detrimental. Accordingly, best interest of children dictates we reverse termina- *7 tion of and reinstate reunification services Long’s parental rights with a of to the children custody. goal returning
Reversed remanded.
Roaf, Vaught, Gladwin, JJ., agree. Glover, dissent.
Crabtree JJ., Terry Crabtree, The trial court in this Judge, dissenting. case terminated nineteen appellant’s parental rights months after the children had been care. removed from her There was evidence at the termination had presented hearing appellant yet with the most basic of the case which comply requirement plan, was to the court that she had come to terms with and had satisfy overcome her There was also evidence that recognized drug problem. she had to achieve the level of for the children’s yet stability necessary care, return to her in that she had not maintained stable employment nor had she obtained suitable The of her home was housing. stability also because of uncertainties from her complicated arising relationship with her current I am Because not left with the definite and boyfriend. firm conviction that the trial court was mistaken in its I judgment, would affirm the decision. termination 2003, the children were taken into emer- February after was arrested on of gency custody appellant charges possession and two methamphetamine, possession drug paraphernalia, counts of the welfare of a child. failed to endangering Appellant at the review held the In its appear hearing following July. ruling from that the trial court found that was not in appellant with the case in that she had missed three compliance evaluation; for a she had not com- appointments psychological classes; and she was not AA/NA meet- pleted parenting attending October, as At the review it ings required. subsequent hearing was disclosed that had moved to it was appellant Georgia. Again, found that was not in with the case appellant compliance plan, the trial court warned appellant permanency-planning herself into hearing upcoming urged appellant bring At this months had compliance. juncture, eight precious passed home, since the children had been taken from her but appellant in the yet begun their engage process facilitating return home.
The was held in permanency-planning hearing February 2004. At this it was shown that hearing appellant beginning make toward the progress reunification. In late goal December 2003, she had returned to Arkansas from her three-month sojourn classes; she had Georgia; she had completed parenting regularly children; visited with the and a screen taken in came January back as did a screen negative, conducted the of the day hearing. with her sister Appellant living and had a job interview however, at McDonald’s. Appellant, completed treatment, nor had she outpatient drug AA/NA attending meetings. children had been Though out of the home for one home, and could not be year returned the trial court continued the of reunification goal because of the measurable progress appellant made, her three more months to giving herself into bring was also compliance. Appellant weekend granted unsupervised However, visitation. this visitation was after a month suspended *8 when failed to return the children appellant on time. Appellant offered the that she had been explanation and was thus hospitalized not time, able to return the children on but never appellant the court with provided documentation of her in the stay hospital, that she despite representation such possessed documentation. At the review permanency-planning held in hearing May 2004, after the three-month it was grace disclosed that period, was still not appellant before, AA/NA As attending meetings. had no appellant provided documentation that she was receiving outpatient treatment. She drug had missed one inexcusably Since the last screening. she had attended three only visitation sessions with the children. It was said that had appellant not maintained Further, contact with the regular it department. was disclosed that her criminal remained charges outstanding. evidence, Based on this the trial court decided to the change goal from termination, reunification to in that the noting particular children had been taken into over protective custody drug usage and that appellant with the case in that area. complied Even excused though her lack of appellant visitation on the basis that her caseworker and that it changed had not been made clear occur, to her when her visits were to the trial court was not such required three-month confusion extended accept any over an entire the
period. is critical of the Although majority the rec- not to “sua decision accept department’s court’s sponte” reunification, it was the trial the to continue goal ommendation termination, the despite court’s change goal prerogative 2005). 9-27-338(c) Ark. Code Ann. (Supp. recommendation. § court, not the rests with the trial department. The decision the trial court of this review hearing, At conclusion her that advising words encouragement, offered appellant the “death knell” to termination changing goal herself into Unfor- time to compliance. that there still bring held at the termination hearing, testimony tunately, presented later, did not take three revealed that some months appellant that she of the additional time. There advantage tested also known as for 19May propoxyphen, positive Darvon, a in and that that she had missed drug screening July, did not had tested in She present positive opiates August. her attendance at NA meetings. satisfactory proof verifying four one sheet for none May, June, unsigned sign-in sheets in Her sheets in four unsigned August. unsigned July, at could be confirmed. Other attendance two July only word, no documentation that she had than her own she provided It in or should completed outpatient drug counseling. participated be noted that represented throughout proceedings, appellant counselor, Kucala, that she had been and to Ms. K.L.’s receiving at UAMS. treatment on own Pfeiffer, a licensed counselor and certified professional Jim a testified1 that he drug-abuse performed therapist, while alcohol assessment on May appellant appellant interview, was incarcerated on the In drug charges. appellant him that she used and that she drank alcohol told sparingly, drugs and a half even she admitted to DWI ago. though having year and that she had She said that she had smoked one time marijuana times, four or five but that her used methamphetamine choice was that she hydrocodone. Appellant reported *9 this for five on an of four to five a drug years average pills using did month. Pfeiffer said that twenty thirty appellant day, pills per not believe that she needed treatment because she experienced 1 being her When the record was the court discovered that prepared, reporter The trial had malfunctioned and that Pfeiffer’s had not been recorded. testimony equipment judge’s an judge’s clerk a of his from the notes. of By entry prepared summary the fair agreed and court as a order, summary by parties representation accepted of his testimony. no since her incarceration. stated she cravings Appellant traded but said that Pfeiffer hydrocodone, methamphetamine she not as did consider in trading dealing drugs.
Dr. Paul an a forensic conducted Deyoub, psychologist, evaluation of of 2003. He September appellant diagnosed Borderline, with mixed a disorder with appellant personality Histrionic, and traits. He said this disorder Dependent abuse, characterized substance and and unstable instability, abusive had been in and out relationships. Noting appellant court on hot-check and as as her more well charges, contempt arrest, recent he with said that trouble the law also typified her disorder. Dr. stated that no personality Deyoub appellant into her substance-abuse and that she tended to insight problem minimize it. He felt that she was at risk and for continued use her for reunification as regarded prognosis being guarded not Dr. one poor, although said that could not impossible. Deyoub believe and that one appellant’s promises would improvement have to see evidence of before the children could be improvement returned. He testified that must demonstrate her appellant caseworker that: free, home, herself,
she is in a living working, supporting using her All drugs of that would doing therapy. have this, At happen before. the time I did and in like cases this I which these, do a lot of six you’re at months to a looking year and would be ableto those Because verify steps. individualslike her and would have specifically[appellant] high likelihood recurrence or positive drug screens so forth and all of that would be set back. would You have to see it before could kids you place the back with her and two children put with if still young she’s or if still using she’s an life. drugs unstable like living People awith [appellant] diagnosis IQ are capable doing this. That’s not The is it. problem. doing problem Kucala did had made testify since appellant progress Jan her, last that the children were bonded to very that K.L. would if probably termi- regress appellant’s rights However, nated. Ms. Kucala also stressed K.L.’s need overriding which was a need that stability, could not appellant presently fulfill. She testified that to be a achieving stability going “great because there difficulty” were still a lot of unknowns between and her relationship boyfriend. could not appellant home, recommend that the return children that a trial only period *10 12 home in the begin. monitored visits but closely
of unsupervised take before it would how to long not able predict She was home, to return the children for stable enough became appellant be a thing.” think it would “long-term she did not that only saying that, at the although hearing was further testimony There to stubs asked, never she had pay been had appellant at McDonald’s. Appellant four-month employment verify for her her father caring was working that she claimed presently could her caseworker that There testimony grandmother. aged into a larger claim that she moving not verify appellant’s apartment. ten waited case reveals that of this appellant An overview reunification, of toward goal
months to working begin months, she made and that for five maintained compliance partial in the final months and in fact regressed no meaningful progress court At the termination hearing, the proceedings. the necessity testimony outlining Dr. Deyoub’s entitled accept word, she was meeting for documented appellant’s proof, life, a stable and the case of living drug-free goals trial court The and suitable housing. maintaining employment at the on the evidence hearing appellant could find based was the reason which dealt with not successfully drug problem, could from the home. were removed Appellant that the children or NA meetings had attended counseling that she not verify she had termination basis. to the on a prior regular Just attend one screening. and had failed to tests failed two had tested testified that she opiates positive Although appellant because of medication, did not offer any appellant prescribed was not and the trial court obliged of this verification prescription, also at hearing There was testimony to believe her testimony. was or even or not into whether appellant that called question failed to provide proof Appellant court was not gainfully employed. to believe her and the trial required employment, her father. There that she was currently employed to doubt that the trial court reason appellant was testimony giving that could accommodate for an had made apartment arrangements months, Moreover, nineteen after appellant the children. for the children the level of stability necessary achieved personal Kucala, much work yet Ms. there was return home. According be done, would ready could not when be and she say appellant on a basis. Although to return home permanent for the children if K.L. would regress Ms. Kucala expressed opinion *11 terminated, the trial court appellant’s rights was entitled to fit, accord whatever to that as it weight saw and could focus on the overall best interest of the properly child in the context of all the evidence under consideration. It is a sad always trial makes the day anytime judge tough
and unenviable decision that the best interest of children demands
the termination of
review,
parental rights.
we are to
appellate
court,
of deference
give high degree
to the trial
as it is in a far
to observe the
superior position
before it. Trout v. Ark.
parties
Services,
Human
359 Ark.
Dep’t
Rita Burkeen SEARS v. Faye Michael Sr.; Derwin BURKEEN Bank, Regions Guardian of the Estate of Michael Derwin Burkeen Sr.; Burkeen, and Linda Darlene Guardian of the Person of Sr.;
Michael Derwin
Muse;
Burkeen
Richard S.
Lane, Muse, Armen & Pullen
CA 05-1337
Court of of Arkansas Appeals 28, 2006 delivered Opinion June