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

• Decision Date: 30 October 2019
• Docket Number: No. CV-19-544,CV-19-544
• Citation: 2019 Ark. App. 503,588 S.W.3d 419
• Parties: Rachel CHASTAIN, Appellant v. ARKANSAS DEPARTMENT OF HUMAN SERVICES and Minor Child, Appellees
• Court: Arkansas Court of Appeals

2019 Ark. App. 503

588 S.W.3d 419

Rachel CHASTAIN, Appellant

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

No. CV-19-544

Court of Appeals of Arkansas, DIVISION I.

Opinion Delivered October 30, 2019

Leah Lanford, Arkansas Commission for Parent Counsel, for appellant.

Andrew Firth, Office of Chief Counsel, for appellee.

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

LARRY D. VAUGHT, Judge

Rachel Chastain appeals the order entered by the Hot Spring County Circuit Court terminating her parental rights to her daughter MC (born January 5, 2010). Rachel argues that the circuit court clearly erred in finding grounds to support termination and that termination was in MC's best interest. We affirm.

On November 21, 2016, the Arkansas Department of Human Services (DHS) filed a petition for emergency custody and dependency-neglect after removing MC from the custody of her father Cole Cragg.¹ MC had been living with her father, his wife Lesley Cragg, and MC's half sister AC.² An affidavit attached to the petition stated that the Cragg home was under construction and unsuitable to live in, a sex offender was living in the home, Lesley tested positive for methamphetamine, and Cole refused drug testing. An ex parte order for emergency custody of MC was entered November 21.

On February 2, 2017, an adjudication order was entered finding MC dependent-neglected due to neglect and parental unfitness based on Cole's stipulation. The court noted that Rachel, as the noncustodial parent, did not contribute to the dependency-neglect of MC but that her whereabouts were unknown and that she was not a fit parent for purposes of custody.

Rachel's first attendance in the dependency-neglect proceeding is reflected in the circuit court's November 15, 2017 permanency-planning order. In that order, the court authorized a plan of adoption with DHS filing a petition for termination of Cole's parental rights to MC. While the court also found that the concurrent goal of permanent custody with Rachel was appropriate, it further found that Rachel, who had been living in Washington, had recently moved to Arizona; did not advise DHS of her new address and phone number; had little contact with MC over the last several years; and had not completed a home study. The circuit court appointed Rachel counsel and ordered her to come to Arkansas to visit MC.

On December 29, 2017, the circuit court entered an order terminating Cole's parental rights to MC and AC and Lesley's parental rights to AC. In this order, the circuit court ordered DHS to continue reunification services for Rachel, who attended the termination hearing. The court also ordered Rachel to contact her local state representative and senator to request that the home study be expedited by child services in Arizona.

On March 6, 2018, the court held a review hearing with Rachel. In the review order, the circuit court found that Rachel had partially complied with the case plan but had little contact with MC and had not participated in family counseling. The court noted the continued need for the completion of the home study. The court continued the goal of reunification but authorized DHS to file a petition for termination of Rachel's parental rights. A termination hearing was set for May 22, 2018.

On March 29, DHS filed a petition for termination of Rachel's parental rights to MC. DHS alleged that four grounds supported termination: (1) failure to remedy the issues that prevent reunification, Arkansas Code Annotated section 9-27-341(b)(3)(B)(i)(b) (Supp. 2017); (2) failure to maintain meaningful contact or provide material support, section 9-27-341(b)(3)(B)(ii)(a) ; (3) subsequent factors, section 9-27-341(b)(3)(B)(vii)(a) ; and (4) aggravated circumstances, section 9-27-341(b)(3)(B)(ix)(a)(3)(A) , (B)(i) . DHS also alleged that termination was in the best interest of MC.

On May 22, rather than a termination hearing, the circuit court held another review hearing. In the review order, the court again found that Rachel, who attended the hearing, had partially complied with the case plan but had little contact with MC and had not participated in family counseling. The court noted the continued need for the completion of the home study.

The termination hearing was held on December 4, 2018. Sandra Hinton testified that there are 307 potential adoptive matches for MC and AC as a sibling group, that her success rate with adopting sibling groups similar to MC's and AC's ages is very good, and that she is not aware of any barrier that would prevent the adoption of MC and AC.

Rachel testified that in August 2014, Cole was awarded custody of MC "by default" because he told her the wrong time for the custody hearing, and she missed it. She said that when Cole had custody of MC from August 2014 to November 2016, Rachel saw MC only two times because Cole prevented her from exercising her visitation by moving MC out of Arkansas. Rachel stated that she was living in Washington and did not have the means to hire an attorney to enforce her visitation rights. She testified that she did not pay child support because she did not know where Cole and MC lived.

Rachel further testified that she discovered MC was in foster care in February 2017 but did not make a court appearance in this case until July 2017. Because she was living in Washington, she requested DHS to have a home study conducted there. Rachel said that she moved to Arizona in September 2017. She admitted that she did not tell DHS that she had moved until a month and half later. She testified that she called the Arizona DHS equivalent three times about conducting a home study.

Rachel stated that since December 2014, she has seen MC one time—on July 25, 2017—at a dependency-neglect hearing. She was told that the visit upset MC, and family counseling was ordered. Rachel said that she could not afford to travel to Arkansas from Arizona for family counseling. Rachel stated that she wanted to visit with MC, but DHS would not allow it. Rachel testified that she had not provided MC any financial support or spoken to MC on the phone during the dependency-neglect proceeding. Rachel also said that she had purchased birthday gifts for MC but that she had not sent them. She admitted that she has no relationship with MC.

DHS caseworker Kaylen Coke testified that MC had been taken into DHS care in November 2016 and that Rachel's first appearance in the dependency-neglect proceeding was in July 2017. At that time, Rachel requested that MC be placed in her custody in Washington. In September 2017, DHS requested a home study in Washington. Kaylen testified that Rachel moved to Arizona without notifying DHS and that the Washington home study was canceled. DHS requested a home study in Arizona in November 2017 and a second Arizona home study in November 2018; however, the home study has not been conducted.

Kaylen said that the prior caseworker and the attorney ad litem suspended visitation after MC had a negative reaction to her July 2017 visit with Rachel. Kaylen said that Rachel's Arizona residency has been a barrier to her participating in the case and that Rachel has not built a relationship with MC. Kaylen stated that she has not received any calls from Rachel to check in on MC. According to Kaylen, MC has had stability with AC and her foster family since November 2016. Kaylen further testified that DHS was recommending termination due to Rachel's lack of a relationship with MC along with her lack of stability.

Jennifer Embry, MC's therapist, testified that she has been treating MC since February 2017. Jennifer diagnosed MC with adjustment disorder with mixed anxiety and depressed mood but added that MC has improved and is doing well. Jennifer stated that she was asked to contact Rachel to set up family counseling and that she had difficulty communicating with Rachel because the phone number she had for Rachel was incorrect. When Jennifer was able to schedule a phone conference with Rachel in May 2018, Rachel did not keep the appointment. Jennifer said that she had phone sessions with Rachel in June and July 2018 but that there was no communication from Rachel until October 2018 when Rachel left a message for Jennifer with a new phone number that Jennifer could not hear. The last phone session Jennifer had with Rachel was in November 2018.

Jennifer stated that she reported to Rachel the first time they spoke on the phone that she could not provide family therapy over the phone; face-to-face contact is required. Jennifer further stated that she recommends family counseling one or two times a month. Jennifer said Rachel did not participate in family counseling, and the fact that Rachel lived 1,300 miles away was an obstacle that could not be overcome by accommodation. Jennifer opined that a lack of contact over a significant period of time could hinder a parent's ability to meet the emotional needs of a child.

On March 21, 2019, the court entered an order terminating Rachel's parental rights to MC and finding that DHS had proved all four of the grounds alleged in its petition and that termination was in MC's best interest. Rachel filed a timely appeal of this order.

A circuit court's order terminating parental rights must be based on findings proved by clear and convincing evidence. Bolden v. Ark. Dep't of Human Servs. , 2018 Ark. App. 218, at 7, 547 S.W.3d 129, 133 (citing Krecker v. Ark. Dep't of Human Servs. , 2017 Ark. App. 537, at 10, 530 S.W.3d 393, 400 ; Ark. Code Ann. § 9-27-341(b)(3) (Supp. 2017)). Clear and convincing evidence is defined as that degree of proof that will produce in the fact-finder a firm conviction as to the allegation sought to be established.

Bolden , 2018 Ark. App. 218, at 7, 547 S.W.3d at 133. On appeal, the appellate court reviews termination-of-parental-rights cases de novo but will not reverse the circuit court's ruling unless its findings are clearly erroneous. Id. , 547 S.W.3d at 133. A finding is...