Johnson v. Ark. Dep't of Human Servs., CV–17–1018

• Decision Date: 28 March 2018
• Docket Number: No. CV–17–1018,CV–17–1018
• Parties: Don JOHNSON, Appellant v. ARKANSAS DEPARTMENT OF HUMAN SERVICES and Minor Child, Appellees
• Court: Arkansas Court of Appeals

547 S.W.3d 489

Don JOHNSON, Appellant

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

No. CV–17–1018

Court of Appeals of Arkansas, DIVISION III.

Opinion Delivered: March 28, 2018

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

Callie E. Corbyn, Office of Chief Counsel, for appellee.

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

WAYMOND M. BROWN, Judge

Appellant appeals from the circuit court's order terminating his parental rights to D.J., born 3/3/16. On appeal, he argues that there was insufficient evidence to support termination of his parental rights. He also argues that the Arkansas Department of Human Services (DHS) failed to offer sufficient proof of the other elements of both the subsequent-factors and aggravated-circumstances grounds rendering its grant of termination reversible. We affirm.

D.J. and his mother, Jonese Boyd,¹ tested positive for cocaine and THC at the time of D.J.'s birth. Appellant was contacted and verbally acknowledged paternity of D.J. Noting, among other things, a history with DHS that included a Garrett's Law case in 2011 and another in 2014, a 72–hour hold was taken on D.J. on March 4, 2016.² DHS filed a petition for ex parte emergency custody and dependency-neglect on March 7, 2016. The circuit court entered an order for emergency custody on the same date.

A probable-cause order was entered on March 14, 2016, finding that probable cause for D.J.'s removal existed and continued to exist by stipulation of the parties. Because a named father had yet to be added as a party to the matter, "any legal and biological father" was ordered to submit to random drug screens, complete a drug-and-alcohol assessment, complete a counseling assessment, complete a psychological assessment, and maintain stable housing and income. Appellant was ordered to establish paternity, and all visitation and services were ordered to begin for him once his paternity was established. Appellant was not present at the hearing, but a positive drug test for THC from appellant was submitted as an exhibit.

In its May 2, 2016 adjudication order, the circuit court adjudicated D.J. dependent-neglected based on Garrett's Law due to the positive drug tests on D.J. and Boyd, by stipulation of all the parties. The circuit court found that D.J. had no noncustodial parent because appellant was a putative father. The goal of the case was reunification with Boyd with a concurrent goal of adoption. The order noted that appellant lived with Boyd, the latter of whom needed support from a sober parent. It went on to state that "[i]f [appellant] wants to be involved in the life of this child, he needs to take the DNA test and stop doing drugs.... Choices will need to be made, all the way around."

In its August 22, 2016 review order, the circuit court noted testimony that appellant completed DNA testing on August 5, 2016; and that appellant was living with Boyd and handling her financial needs. Appellant was ordered to complete a hair-follicle drug test. The parties were advised that missed screens were considered positive by the circuit court. The goal of the case was reunification with the mother.

In its February 8, 2017 permanency-planning order, in which appellant first appeared as a party in the style of the case, the circuit court stated that appellant's drug-and-alcohol assessment recommended outpatient treatment. The order stated that appellant had denied drug use despite having positive hair-follicle tests. The order stated that appellant had an order of paternity. The circuit court instructed that "[i]f [appellant] wants to be clean and get his child, he may have to let mother go." Specifically relating to appellant, it stated the following:

DON JOHNSON testified that he has four children.... Two of the children are grown. He lives with Jonese Boyd. He has lived with her six years. He has been to prison four times. It was for possession with intent to deliver cocaine. That was 1998 and other times. He was not in prison for theft of property in 2013. He went to prison in April 2013 for possession. He has had 3 drug charges he was found guilty or pleaded guilty to; he has been to prison for three drug charges. He is on parole. He was positive for marijuana up to August 1. He is trying to get his son back. He has not used cocaine. He has an order of paternity,³ and he has to pay child support. It came two months ago. He wants to remain a family unit with mother. He works; he drives trucks. He plans to continue this job.

The circuit court found that appellant was "just now getting going on services. We are a year in." The goal of the case was changed to adoption.

DHS filed a petition for termination of appellant's parental rights on March 7, 2017. The grounds given in support of termination of his parental rights were:

1. That the juveniles had been adjudicated dependent-neglected and had continued out of the custody of the parent for twelve months and despite a meaningful effort by the department to rehabilitate the parent and correct the conditions which caused the removal, those conditions had not been remedied by the parent;⁴

2. That, subsequent to the filing of the original petition for dependency-neglect, other factors or issues arose which demonstrate that placement of the juveniles 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 which prevent the placement of the juveniles in the custody of the parent;⁵ and

3. That the parent is found by a Court of competent jurisdiction, including the Juvenile Division of Circuit Court to have subjected any juvenile to aggravated circumstances.⁶

Additionally, DHS asserted that termination of appellant's parental rights was in the best interest of the children.

Appellant submitted a response to DHS's petition on April 4, 2017, requesting that the circuit court dismiss the petition and grant him custody of D.J. He specifically denied the grounds asserted by DHS and that termination was in D.J.'s best interest as he denied that there were not any barriers to adoption for D.J., and denied that there was any potential harm in giving custody of D.J. to him.

DHS filed a motion to dismiss its own petition to terminate appellant's rights on May 3, 2017. It stated therein that appellant had been compliant since the February 8, 2017 permanency-planning hearing, noting that appellant had not had a positive drug test since the last court date.⁷ Attached as an exhibit thereto was appellant's graduation certificate from parenting classes.

The attorney ad litem filed a petition for termination of appellant's parental rights on May 8, 2017. It alleged the same three grounds—the twelve-months-without-remedy, other-subsequent-factors, and aggravated-circumstances grounds—that DHS alleged in its March 7, 2017 petition based on essentially the same arguments.

On the same date that the ad litem filed its termination-of-parental-rights petition, a hearing was held before the circuit court and the circuit court entered a fifteen-month permanency-planning order. Therein, it granted DHS's motion to withdraw its termination petition. The order stated that Tameka Jones, the family services worker, testified that both parents, who resided together in an appropriate and well-maintained home, had made significant, measurable progress since she obtained the case in August 2016, and that reunification could be achieved in a reasonable time. Jones testified that the parents were ready for unsupervised visits; her supervisor believed a trial placement could start in three months. Other pertinent testimony revealed that appellant gambled, but "not that much"; and the foster parent testified that D.J. is pretty "laid back most of the time" but he has "a little of a temper, but that is just getting bigger."

The circuit court found that both parents were complying, but the goal of the case was "reserved." Visitation was to remain as previously ordered and it found, as it had throughout the case, that DHS had made reasonable efforts to provide services and achieve the goal of the case. It specifically found:

Doing services is not the same thing as benefitting from services. There has not been random drug or alcohol screening. The Court has to rely on the hair drug screens due to this.

This case cannot go on forever. There is no doubt the parents love the child, but they have to actually show a benefit from services. Either the parents are in this, or they are not. They have to do more than check off boxes. They must provide sign in sheets, proof of attendance, and proof of actual work being done and improvements being made.

The Court has seen no information that this child is truly "special needs," and the Court is not going to slap that label on every child in DHS custody. The attributes that [the foster parent] described can very well be merely a demanding child, not based on some underlying disorder or issue.

[Appellant] has money to gamble, he has money to contribute to attorney fees.to the father would result in successful placement of the child with him. He has previously testified that he has lived with the Mother for six years. [D.J.] is the third child they have had together. All three have been Garrett's Law cases.

....

[Appellant] has testified at prior hearings that he intends to remain with Ms. Boyd and live together as a family. Even if he were to become substance-free, he cannot provide a safe and appropriate home for the child as long as the mother lives there. He has shown no inclination to separate himself from Mother, despite her ongoing drug usage. Further, Mr. Boyd [sic] has testified previously that he is on parole for prior drug-related convictions. At worst, his prior positive drug screens have jeopardized his

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