Harjo v. Ark. Dep't of Human Servs., CV–18–22

• Citation: 548 S.W.3d 865
• Decision Date: 25 April 2018
• Docket Number: No. CV–18–22,CV–18–22
• Parties: Alecia Mae HARJO, Appellant v. ARKANSAS DEPARTMENT OF HUMAN SERVICES and Minor Children, Appellees
• Court: Court of Appeals of Arkansas

548 S.W.3d 865

Alecia Mae HARJO, Appellant

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

No. CV–18–22

Court of Appeals of Arkansas, DIVISION III.

Opinion Delivered: April 25, 2018

Tabitha McNulty, Arkansas Public Defender Commission, for appellant.

Andrew Firth, Office of Chief Counsel, for appellee.

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

KENNETH S. HIXSON, Judge

Appellant Alecia Harjo appeals from the termination of her parental rights to her son Z.H.1, age 8, and her daughter Z.H.2, age 6.¹ Because Z.H.1 and Z.H.2 are Indian children, the Indian Child Welfare Act (ICWA), 25 U.S.C. §§ 1901 et seq., applies to the case. On appeal, Alecia argues that the termination order should be reversed because the evidence was insufficient to establish statutory grounds for termination. We affirm.

We review termination-of-parental-rights cases de novo. Mitchell v. Ark. Dep't of Human Servs. , 2013 Ark. App. 715, 430 S.W.3d 851. At least one statutory ground must exist, in addition to a finding that it is in the children's best interest to terminate parental rights. Ark. Code Ann. § 9–27–341 (Supp. 2017); Kohlman v. Ark. Dep't of Human Servs. , 2018 Ark. App. 164, 544 S.W.3d 595. For termination proceedings subject to the ICWA, as in this case, the burden of proof is beyond a reasonable doubt. Ark. Code Ann. § 9–27–325(h)(3)(B)(2) (Supp. 2017). We will not reverse the trial court's ruling unless its findings are clearly erroneous. Sharks v. Ark. Dep't of Human Servs. , 2016 Ark. App. 435, 502 S.W.3d 569. A finding is clearly erroneous when, although there is evidence to support it, we are left with a definite and firm conviction that a mistake has been made. Id.

This case was initiated by appellee Arkansas Department of Human Services (DHS) when it filed a petition for emergency custody of the children in Washington County Circuit Court on May 2, 2016. An attached affidavit of a family-service worker stated that the children were removed from the parents' home in Washington County two days earlier pursuant to an emergency hold. The affidavit alleged that both parents, Alecia and Joshua, had been arrested, thereby leaving no caretaker for the children. Alecia was arrested for endangering the welfare of a minor and public intoxication. Joshua was arrested for endangering the welfare of a minor and domestic battery committed against Alecia. The affidavit further stated that there had been prior DHS involvement with the family for issues related to environmental neglect, educational neglect, and inadequate shelter.

On May 2, 2016, the Washington County Circuit Court entered an ex parte order for emergency custody of the children. A probable-cause order was entered on May 3, 2016.

The Washington County Circuit Court entered an adjudication order on June 22, 2016, finding the children to be dependent-neglected. The trial court placed custody of the children with their maternal grandfather, Max Trotter, who lives in Izard County. The trial court authorized Alecia to live in the home with Mr. Trotter and the children, but she was ordered not to be alone with the children. Alecia was ordered to cooperate with DHS, participate in counseling, submit to a drug-and-alcohol assessment and follow the recommendations, refrain from using illegal drugs or alcohol, submit to drug screens, and maintain stable housing and employment. The goal of the case was reunification. Because the juveniles were relocated to Izard County, an order was entered transferring the case to Izard County Circuit Court.

The Izard County Circuit Court conducted a review hearing on September 20, 2016, and the court subsequently entered a review order finding that the parents had complied with the case plan. On October 14, 2016, DHS filed in Izard County Circuit Court a motion for ex parte emergency custody of the children. Attached to the petition was an affidavit of a family-service worker stating:

There was an emergency and services could not be provided to prevent removal. FSW Hutchins received several phone calls from the grandfather, Max Trotter. Mr. Trotter stated that he can no longer take care of the children, due to the mother not being in compliance with the case and that she was using illegal substances. Mr. Trotter stated that he did not believe that the children would be safe in his home due to the children's father and his daughter's behaviors. Mr. Trotter stated that he did not want the children to be harmed and that his daughter was not doing what she needed to do. Mrs. Harjo contacted FSW Hutchins and was very erratic on the phone stating that her father was kicking her out of the home and she was going back to her husband in Northwest AR.

On October 24, 2016, the Izard County Circuit Court entered an order of emergency change of custody, placing the children in the custody of DHS. The children returned to Washington County, and an order was entered transferring the case back to Washington County Circuit Court.

On December 22, 2016, in Washington County Circuit Court, an agreed order was entered whereby the parties agreed to a trial home placement of the children with the parents. In that order, the parties agreed that Alecia and Joshua were in compliance with the case plan, that the parents' home was clean and appropriate, and that the parents had passed random drug screens. In addition, Alecia's criminal charges had been dismissed. Based on these circumstances, the parties agreed that a trial home placement was in the children's best interest.

The first of two permanency-planning hearings was held on April 13, 2017. In a permanency-planning order entered on April 13, 2017, the trial court found that the trial home placement was unsuccessful and that the children were removed from the trial home placement on February 5, 2017. The trial court further found that both parents had not complied with most of the case plan and had made minimal progress toward alleviating the causes of the children's removal from the home. With regard to Alecia, the trial court specifically found:

She has not maintained sobriety, has not maintained contact with DHS, has not passed all drug screens, and has not attended all visits offered to her. Mother has missed 9 out of 19 drug screens requested and failed 4 of the 10 she attended. Mother tested positive for methamphetamine as recently as March 20, 2017—and she did not contest the result.

The second permanency-planning hearing was held on June 21, 2017. In a permanency-planning order entered on June 23, 2017, the trial court found that Alecia had tested positive for methamphetamine, amphetamines, and THC on April 24, 2017, and again on June 15, 2017. The trial court also found that, despite three referrals, Alecia had not completed individual counseling. The goal of the case was changed to termination of parental rights and adoption.

On July 24, 2017, DHS filed a petition to terminate both parents' parental rights. The termination hearing was held on September 21, 2017.

On October 16, 2017, the trial court entered an order terminating the parental rights of both Alecia and Joshua. The trial court found by evidence beyond a reasonable doubt that termination of parental rights was in the children's best interest. In making its best-interest determination, the trial court specifically considered the likelihood that the children would be adopted, as well as the potential harm of returning them to the custody of their parents as required by Ark. Code Ann. § 9–27–341(b)(3)(A)(i) & (ii). With respect to both parents, the trial court found evidence beyond a reasonable doubt of the following three statutory grounds under subsection (b)(3)(B):

(i)(a) That a juvenile has been adjudicated by the court to be dependent-neglected and has continued to be out of the custody of the parent for twelve (12) months and, despite a meaningful effort by the department to rehabilitate the parent and correct the conditions that caused removal, those conditions have not been remedied by the parent.

....

(ii)(a) The juvenile has lived outside the home of the parent for a period of twelve (12) months, and the parent has willfully failed to provide significant material support in accordance with the parent's means or to maintain meaningful contact with the juvenile.

....

(vii)(a) That other factors or issues arose subsequent to the filing of the original petition for dependency-neglect that demonstrate that placement of the juvenile in the custody of the parent is contrary to the juvenile's health, safety, or welfare and that, despite the offer of appropriate family services, the parent has manifested the incapacity or indifference to remedy the subsequent issues or factors or rehabilitate the parent's circumstances that prevent the placement of the juvenile in the custody of the parent.

The trial court also found beyond a reasonable doubt, under the provisions of the ICWA, that DHS provided remedial services and rehabilitative programs designed to prevent the breakup of the Indian family but that those efforts proved unsuccessful. See 25 U.S.C. § 1912(d). Finally, the trial court found evidence beyond a reasonable doubt, including qualified expert testimony, that continued custody of the children by the parents would likely result in serious emotional or physical damage to the children, as also required by the ICWA. See 25 U.S.C. § 1912(f).²

Cortney Willis, the...