Miller v. Ark. Dep't of Human Servs. & Minor Children, CV-17-26.

• Citation: 525 S.W.3d 48
• Decision Date: 21 June 2017
• Docket Number: No. CV-17-26.,CV-17-26.
• Parties: Brandi MILLER and Dana Crosby, Appellants v. ARKANSAS DEPARTMENT OF HUMAN SERVICES and Minor Children, Appellees
• Court: Court of Appeals of Arkansas

525 S.W.3d 48

Brandi MILLER and Dana Crosby, Appellants

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

No. CV-17-26.

Court of Appeals of Arkansas, DIVISION III.

Opinion Delivered June 21, 2017

Tina Bowers Lee, Arkansas Public Defender Commission, for appellant Brandi Miller.

Dusti Standridge, for appellant Dana Crosby.

Mary Goff, Bentonville, Office of Chief Counsel, for appellee.

Chrestman Group, PLLC, by: Keith L. Chrestman, attorney ad litem for minor children.

DAVID M. GLOVER, Judge

This is an appeal from the termination of the parental rights of Dana Crosby and Brandi Miller to two children, D.C. (D.O.B. 1/04/2015—female) and D.C. (D.O.B. 3/31/2005—male). Brandi has other children not fathered by Dana who were involved in this case, but these two children are the only ones involved in this appeal. Brandi and Dana have each filed separate briefs. Brandi challenges only the adoptability prong of the trial court's best-interest finding. Dana challenges the statutory grounds and the potential-harm prong of the best-interest finding. We affirm the termination of parental rights with respect to both parents.

This case originated in Sebastian County. D.C. (male) was taken into custody in late October 2013. D.C. (female) was not yet born. The case arose because Dana and Brandi were involved in a domestic disturbance. Brandi was at Dana's house; they were arguing; Brandi tried to take D.C. (male) but Dana did not want her to because he said she was homeless. Dana told Brandi to leave, locked her out, and she kicked in the window. Although D.C. (male) was born March 31, 2005, Dana and Brandi did not marry until April 10, 2010. Consequently, at that point, Dana was not recognized as D.C. (male)'s legal father, and because Brandi was being arrested on outstanding warrants, a seventy-two-hour hold was taken on D.C. (male). The affidavit further noted that Dana had been drinking beer and was visibly upset by the incident. An emergency custody order was entered; Brandi stipulated to probable cause; and a referral was made for Dana to be tested for paternity.

On December 27, 2013, D.C. (male) was adjudicated dependent-neglected. Reunification was the original goal. The case proceeded with services offered and review hearings held. The March 10, 2014 review order found The Arkansas Department of Human Services (DHS) had made reasonable efforts to provide services to achieve the goal of reunification, and genetic testing established Dana was the biological and legal father of D.C. (male). The order further found the parents had not complied with the court's orders or the case plan. In particular, the court found they had not obtained stable and appropriate income, employment, and transportation; had not completed a drug-and-alcohol assessment; had not completed parenting classes; had tested positive for THC during the pendency of the case; and had not completed hair-follicle testing despite multiple referrals by DHS. In addition, the court found that although Dana had obtained stable and appropriate housing, Brandi had not.

In the August 11, 2014 permanency-planning order, the trial court set concurrent goals of reunification and termination, finding the parents were compliant with portions of the case plan and court orders, but not compliant with others. The portions where they were noncompliant included failure to complete a drug-and-alcohol assessment, testing positive for illegal substances during the pendency of the case, Dana's failure to complete a hair-follicle drug test as requested, failure to complete parenting classes or domestic-violence classes, and issues regarding regular visits with the children. The trial court further found DHS had made reasonable efforts to provide family services and to finalize a permanency plan. On August 13, 2014, a judgment of paternity was entered establishing Dana as the father of D.C. (male) and ordering him to pay child support in a specified amount.

On November 10, 2014, the trial court entered a fifteen-month permanency-planning order, which changed the goal of the case to adoption, following termination of parental rights. The trial court found the parents had not complied with the established case plan or the court orders, had not made significant measurable progress toward achieving the case plan's established goals, and had not been diligently working towards reunification. The court's specific findings of noncompliance included failure to complete drug-and-alcohol assessments, failure to participate in individual and family counseling, testing positive for illegal substances throughout the pendency of the case, failure to complete parenting classes and domestic-violence classes, and missing a significant number of visits with the children. The court further found DHS had made reasonable efforts to provide family services.

On December 31, 2014, DHS filed a petition for termination of parental rights. On March 26, 2015, Brandi moved to continue the termination hearing because she and Dana had another child, D.C. (female), who was born on January 4, 2015, and had complications due to a premature birth. On April 9, 2015, the trial court entered a review order in which it granted the motion for continuance, reviewed the case, and noted that all parties expressly waived the ninety-day period required by the juvenile code for a petition to terminate parental rights to be heard. The goal of the case remained adoption following termination of parental rights.

Following a continuance requested by DHS, another permanency-planning hearing was eventually held on August 13–14, 2015. By amended order entered on September 25, 2015, the trial court changed the goal from adoption and termination to reunification, finding that it was in the children's best interest to give the parents more time to comply but cautioning the parents that they did "not have much longer." The court found the parents had not shown stable and appropriate housing or income and had not completed a drug-and-alcohol assessment. In addition, the order recounted evidence entered by the court, including an affidavit of arrears regarding Dana's child-support obligations, Dana's April 3, 2015 drug-screen result, counseling summaries, and certified copies of transcripts of a judgment against Dana for possession of instrument of a crime from an original charge of possession of marijuana. The order further noted that DHS proffered an August 12, 2015 drug screen for Dana showing positive results for THC and methadone and that DHS had made reasonable efforts to provide services.

Soon thereafter, on October 22, 2015, D.C. (female) was removed from her parents' custody. An emergency custody order was entered on October 23, 2015 for D.C. (female). The accompanying affidavit explained in part that DHS had received a call on October 21 reporting that Brandi's older daughter (not involved in this appeal) had threatened to kill herself if she were returned to Brandi's house, making allegations against Brandi and also alleging Dana provided her with marijuana. When family-service workers went to Brandi and Dana's house to inform them a hold had been placed on Brandi's older daughter, Brandi became irate, both parents were unwilling to submit to a drug screen, the family-service workers called police to help calm the situation, the parents then engaged in a heated argument with a police officer, and both parents acknowledged they had moved in the last month and that neither of them was working or drawing government benefits. A medical-records review revealed D.C. (female) was behind on all of her immunizations. The affidavit further revealed that after the seventy-two-hour hold had been placed on D.C. (female), Brandi and Dana submitted to a drug screen, that showed both were positive for THC.

A probable-cause hearing was held on October 27, 2015, the parents stipulated probable cause existed, and the probable-cause order was entered on November 17, 2015. Both parents were ordered to submit to hair-follicle drug testing as requested by DHS.

A review/adjudication hearing was held on December 8, 2015. By adjudication order entered on January 4, 2016, D.C. (female) was adjudicated dependent-neglected, finding in part that D.C. (female) tested positive "at very high levels" for illegal substances, including methamphetamine, cocaine, and THC, while under the care of her parents. In the review order, also entered on January 4, 2016, the trial court further found the parents had not complied with the case plan or the court's orders. In particular, they had moved to Fort Smith during the review period and Brandi then returned to her father's house in Fayetteville; they were not working and had no stable income; they failed to complete drug-and-alcohol assessments; they failed to complete parenting classes; they failed to obtain counseling/anger management; and they continued to test positive for THC. The trial court set concurrent goals of reunification and adoption following termination of parental rights.

Soon thereafter the case was transferred from Sebastian County to Washington County. The January 27, 2016 review hearing was continued until April 13, 2016, but an interim review hearing was held on February 24, 2016. In the February 25, 2016 review order, the trial court found Brandi and Dana had not complied with many of the items specified in the case plan and court orders. In particular for Dana, the court found he had not submitted to random drug screens; he had not completed parenting classes; he had not attended all of the visitations; he had not gone to counseling; and he did not have stable housing.

The scheduled April 13, 2016 setting became a permanency-planning hearing for D.C. (male) and a review hearing for D.C. (female). By order entered the same date, the trial court continued the goal of reunification for both children until the next scheduled hearing set for May 13, 2016.

On May 13, 2016, part two of the...