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

• Decision Date: 28 November 2018
• Docket Number: No. CV-18-528,CV-18-528
• Citation: 567 S.W.3d 861,2018 Ark. App. 571
• Parties: William NORRIS, Appellant v. ARKANSAS DEPARTMENT OF HUMAN SERVICES and Minor Child, Appellees
• Court: Arkansas Court of Appeals

2018 Ark. App. 571

567 S.W.3d 861

William NORRIS, Appellant

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

No. CV-18-528

Court of Appeals of Arkansas, DIVISION II.

Opinion Delivered November 28, 2018

Tabitha McNulty, Arkansas Public Defender Commission, for appellant.

Callie Corbyn, Office of Chief Counsel, for appellee.

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

PHILLIP T. WHITEAKER, Judge

William Norris appeals the order of the Faulkner County Circuit Court that terminated his parental rights to his daughter, A.F. Norris challenges both the statutory grounds supporting the decision to terminate his parental rights and the potential-harm finding that informed the court's best-interest conclusion. We find no error and affirm.

I. Background and Procedural History

A.F. was born in October 2016 with methamphetamine in her system. The Arkansas Department of Human Services (DHS) filed a petition for emergency custody and dependency-neglect removing A.F. from the custody of her mother, Jessica McCoy.¹ At the time of A.F.'s birth, Jessica was married to Joshua McCoy; therefore, both Jessica and Joshua were named as A.F.'s legal parents on the petition although A.F.'s biological father was unknown at the time.² The court entered an ex parte order for emergency custody, a probable-cause order, and in November 2016, an adjudication order finding A.F. dependent-neglected. In the adjudication order, the court noted that it accepted the parties' stipulation that the allegations in the ex parte petition and accompanying affidavit were true and stating as well that this was a "Garrett's Law" case. The adjudication order reflected that the parties were Jessica McCoy as the mother, Joshua McCoy as the legal father, and Zachery Free as the putative father. Norris was not a party at the time of adjudication.

In February 2017, the circuit court, acting on information that Norris might be A.F.'s biological father, issued an order for DNA testing to determine parentage. The DNA test revealed that Norris is A.F.'s biological father. Accordingly, by order entered on May 9, 2017, the court added Norris as a party, ordered Norris to comply with the case plan and court orders, and ordered DHS to conduct a home study on Norris and his mother. By this time, A.F. was seven months old.

After being determined to be A.F.'s biological father, Norris was also permitted to begin visitation with her, and he participated in the review-hearing process, attending a review hearing in July 2017. The court's subsequent review order noted that Norris had visited with A.F. for two hours on March 28 and two hours on May 24. In addition to his participation with visitation, the court found that Norris was employed and had partially complied with the case plan. Because Norris tested positive for THC, the court ordered Norris to submit to a drug-and-alcohol assessment. The court further ordered him to take steps to resolve issues with his driver's license, complete the paperwork necessary to complete his home study, and comply with the case plan and court orders. DHS was concomitantly ordered to complete the home study, arrange Norris's drug-and-alcohol assessment, and provide him assistance with transportation. The court determined that the goal of reunification was still appropriate for A.F., but the concurrent goal of adoption was also appropriate.

At a permanency-planning hearing in October 2017, the court determined that the goal of the case should be adoption because "neither parent has made significant measurable progress that would justify continuing with [the] goal [of reunification]." With respect to Norris, the court found that he had failed to comply with the case plan and court orders in that he had failed to maintain meaningful contact with DHS; he had failed to complete the paperwork to have a home study performed on his residence; and he had visited with A.F. only three times since March of that year. The court did allow Norris to continue having visitation, although it changed the goal of the case to adoption.

DHS filed its petition for termination of parental rights as to Norris and the McCoys in November 2017.³ As to Norris, DHS pled five separate grounds for termination.⁴ After a hearing on the petition, the circuit court found that DHS had proved the statutory grounds necessary for termination. Specifically, the court found that DHS had proved three grounds: the "twelve-month failure to support or communicate" ground, abandonment, and aggravated circumstances by abandonment. The court also found, based on the caseworker's testimony that A.F.'s foster parents wished to adopt her, that A.F. was adoptable. Finally, the court found that Norris's "lack of involvement and visitation with [A.F.] demonstrate[s] how [A.F.] would be at risk of potential harm if returned" to Norris. The circuit court entered an order and a subsequent amended order terminating Norris's parental rights.⁵ Norris filed a timely notice of appeal, and he now challenges the circuit court's findings regarding the statutory grounds and the potential-harm prong of its best-interest analysis.

II. Standard of Review

On appeal, we review termination-of-parental-rights cases de novo but will not reverse the circuit court's ruling unless its findings are clearly erroneous. Dade v. Ark. Dep't of Human Servs. , 2016 Ark. App. 443, 503 S.W.3d 96. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Id. In determining whether a finding is clearly erroneous, we have noted that in matters involving the welfare of young children, we will give great weight to the trial judge's personal observations. Jackson v. Ark. Dep't of Human Servs. , 2016 Ark. App. 440, 503 S.W.3d 122.

Our case law recognizes that the termination of parental rights is an extreme remedy and in derogation of the natural rights of the parents. Fox v. Ark. Dep't of Human Servs. , 2014 Ark. App. 666, 448 S.W.3d 735. In termination-of-parental-rights matters, the circuit court is required to follow a two-step process by finding first that the parent is unfit and second that termination is in the best interest of the child. T.J. v. Ark. Dep't of Human Servs. , 329 Ark. 243, 947 S.W.2d 761 (1997) ; Smith v. Ark. Dep't of Human Servs. , 2013 Ark. App. 753, 431 S.W.3d 364. The first step requires proof of one or more of the statutory grounds for termination. Ark. Code Ann. § 9-27-341(b)(3)(B). The second step requires consideration of whether the termination of parental rights is in the child's best interest. Ark. Code Ann. § 9-27-341(b)(3)(A). As a result, DHS bears a heavy burden in seeking to terminate the relationship of parent and child. Fox, supra.

III. Statutory Grounds

We first address Norris's challenge to the sufficiency of the evidence supporting the statutory grounds found to exist by the circuit court. The circuit court found that Norris abandoned A.F. See Ark. Code Ann. § 9-27-341(b)(3)(B)(iv). "Abandonment" is defined in Arkansas Code Annotated section 9-27-303(2)(A) as follows:

(i) The failure of the parent to provide reasonable support for a juvenile and to maintain regular contact with a juvenile through statement or contact when the failure is accompanied by an intention on the part of the parent to permit the condition to continue for an indefinite period in the future;

(ii) The failure of a parent to support or maintain regular contact with a child without just cause; or

(iii) An articulated intent to forego parental responsibility.

We now consider the evidence that supports termination of Norris's parental rights on this ground.

The court heard evidence from both DHS and Norris concerning his sporadic visitation with A.F. Before the permanency-planning order was entered, Norris had limited contact with A.F. After the DNA test showed Norris to be A.F.'s father, he requested a visit, which DHS accommodated in March 2017. Over the next few months, Norris visited only two more times, on May 24 and September 11. In all, Norris exercised only three visitations with A.F. during 2017. After DHS filed the petition to terminate his rights, Norris did exercise three visits in January 2018. He conceded, however, that he did not step up his visitations with A.F. until after his attorney told him that he needed to make more visits; in fact, he expressly testified that he was "told it would look better if I came and visited more often." In all, Norris had only six visits with his daughter, and during her life he had spent no more than twelve hours with her.

Norris ascribed his lack of contact to the 170-mile distance between Texarkana, where he lived, and Conway, where A.F. resided. He described his work schedule, saying he worked as a mechanic from eight to five Monday through Friday and seven to noon on Saturdays. He also addressed his visitations with A.F. in the context of his work schedule, saying it was hard to take off work and get back and forth from Texarkana and that his job kept him so busy that he could not take time off. He also conceded, however, that "other than being busy at work, there aren't any other reasons that I wasn't able to see my daughter more." In addition to this evidence, the court also heard that DHS had offered Norris gas cards to help with transportation and was also willing to provide him with rides to and from Conway to facilitate visitation. In fact, caseworker Latifa Jones testified that if Norris "either had a different work schedule or, for whatever reason, if he had wanted to come to more visits, attend weekly, attend every other week, oh, yes, I was willing to offer that service. If we had to do the visits in the early evening, that is something that I was willing to do. I was pretty open with him as far as allowing him to visit her." Another caseworker, Holli Harrington, noted that Norris had...