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

• Decision Date: 24 January 2018
• Docket Number: No. CV–17–729,CV–17–729
• Citation: 538 S.W.3d 870
• Parties: Adrianne OTIS, Appellant v. ARKANSAS DEPARTMENT OF HUMAN SERVICES and Minor Child, Appellees
• Court: Arkansas Court of Appeals

538 S.W.3d 870

Adrianne OTIS, Appellant

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

No. CV–17–729

Court of Appeals of Arkansas, DIVISION I.

Opinion Delivered January 24, 2018

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

Jerald A. Sharum, Office of Chief Counsel, for appellee.

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

N. MARK KLAPPENBACH, Judge

Appellant Adrianne Otis appeals the June 13, 2017 order of the Pulaski County Circuit Court that terminated her parental rights to her son, CO, who was born in August 2012.¹ Appellant argues on appeal that the trial court's finding that it was in her child's best interest to terminate her parental rights is not supported by clear and convincing evidence. Thus, appellant argues, the trial court's termination order must be reversed. 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 child's best interest to terminate parental rights; these must be proved by clear and convincing evidence. Ark. Code Ann. § 9–27–341 (Repl. 2015); Dunn v. Ark. Dep't of Human Servs. , 2016 Ark. App. 34, 480 S.W.3d 186. Clear and convincing evidence is that degree of proof that will produce in the fact-finder a firm conviction as to the allegation sought to be established. Anderson v. Douglas , 310 Ark. 633, 839 S.W.2d 196 (1992). The appellate inquiry is whether the trial court's finding that the disputed fact was proved by clear and convincing evidence is clearly erroneous. J.T. v. Ark. Dep't of Human Servs. , 329 Ark. 243, 947 S.W.2d 761 (1997). 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. Yarborough v. Ark. Dep't of Human Servs. , 96 Ark. App. 247, 240 S.W.3d 626 (2006). Credibility determinations are left to the fact-finder. Henson v. Ark. Dep't of Human Servs. , 2014 Ark. App. 225, 434 S.W.3d 371. In resolving the clearly-erroneous question, a high degree of deference is given to the trial court, as it is in a far superior position to observe the parties before it and to judge the credibility of the witnesses. Wallace v. Ark. Dep't of Human Servs. , 2017 Ark. App. 376, 524 S.W.3d 439.

Appellant does not challenge the trial court's finding of statutory grounds. Her argument is focused solely on the best-interest finding. The best-interest finding must be based on a consideration of two factors: (1) the likelihood that if parental rights are terminated, the juvenile will be adopted and (2) the potential harm caused by returning the child to the custody of the parent. Ark. Code Ann. § 9–27–341(b)(3)(A). Adoptability is not an essential element but is rather a factor that the trial court must consider. Singleton v. Ark.Dep't of Human Servs. , 2015 Ark. App. 455, 468 S.W.3d 809. A trial court is not required to find that actual harm would result or to affirmatively identify a potential harm; rather, potential harm must be viewed in a forward-looking manner and in broad terms, including the harm the child suffers from the lack of stability of a permanent home. Vail v. Ark. Dep't of Human Servs. , 2016 Ark. App. 150, 486 S.W.3d 229 ; Caldwell v. Ark. Dep't of Human Servs. , 2016 Ark. App. 144, 484 S.W.3d 719. A parent's past behavior is often a good indicator of future behavior. Stephens v. Ark. Dep't of Human Servs. , 2013 Ark. App. 249, 427 S.W.3d 160. It is the "best interest" finding that must be supported by clear and convincing evidence after consideration of the foregoing factors. Vail , supra.

With these legal principles in mind, we examine the evidence presented to the trial court. The Arkansas Department of Human Services (DHS) sought and was granted emergency custody of almost-four-year-old CO in August 2016 after investigating an allegation that Otis was inadequately supervising him because of her drug use. Two weeks later, the trial court found that probable cause existed to support the child's removal from Otis and that he should remain in DHS custody.

At the adjudication hearing in September 2016, Otis stipulated to a finding that the child was dependent-neglected. The trial court also found at the adjudication hearing that there was clear and convincing evidence that Otis had subjected CO to aggravated circumstances in that it was unlikely that services to the family would result in successful reunification within a reasonable period of time as measured from the child's perspective. The trial court listed several of Otis's positive drug-test results and what appeared to be attempts to alter some of the specimens she had provided. The trial court noted her "extensive mental health history," with diagnoses of an unspecified schizophrenia /psychotic disorder and an alcohol-use disorder. Otis's mental-health records indicated that she heard voices on a daily basis telling her to do bad things; that she had homicidal thoughts and aggression; that she was paranoid and had hallucinations that were worse at night; and that she was previously housed in prison in a special-populations unit due to her depressive symptoms. The trial court found that she was an unfit parent "and there is a substantial question" whether she could ever be made a fit parent. Otis was married to CO's legal father, who had a criminal history and who Otis had accused of being physically abusive. The trial court set the initial goal of reunification and ordered services to be provided to both parents. The trial court also made the finding that in this case it did not have to permit a full year of services to be given, if it determined that sufficient progress was not being made. In addition to counseling, therapy, parenting classes, and supervised visitation, Otis was ordered to attend an anger-management class. Otis did not appeal the adjudication order.

In January 2017, a permanency-planning hearing was conducted. The trial court found Otis not to be credible. Otis was partially compliant with the case plan, but she blamed DHS for her failures in getting to appointments. The trial court recited that Otis had been arrested for public intoxication in mid-October 2016 and had failed to comply with drug screening. The trial court listed several drug tests wherein the sample lacked the appropriate temperature or Otis claimed the inability to produce a specimen. The trial court found that Otis was "not minimally fit to parent any child," and it authorized the filing of a petition to terminate her parental rights.

The trial court found that CO's legal father (Christopher Otis, Sr., who did not appear at this hearing) was excluded by DNA testing as CO's biological father. It ordered DHS to consider whether there were any potential relatives who might be proper placements for CO. Services were continued, including the provision of transportation. Otis was ordered to attend inpatient drug treatment, submit to drug testing, and attend therapy.

In April 2017, DHS filed a petition to terminate parental rights alleging two statutory grounds found in Arkansas Code Annotated section 9–27–341(b)(3)(B), the subsequent-other-factors-arising ground, and the aggravated-circumstances ground. Otis's continued lack of compliance was detailed in this petition.

The termination hearing was conducted in May 2017. Otis appeared, but Christopher Otis, Sr., did not. The DHS caseworker testified that DHS had referred Otis for inpatient drug treatment, which was available, but Otis did not attend and instead went to some outpatient meetings. Otis had been referred for parenting classes but did not show up. The caseworker recited the various drug screens and the positive results obtained, opining that Otis had not remedied her drug issues. The caseworker stated that a home study showed her home not to be an appropriate placement because it lacked furniture and had ongoing construction; the home had functioning water and lights but not gas. The caseworker further testified about Otis's mental-health problems, which was the reason she received disability income, and to the fact that Otis failed to attend therapy appointments. CO was noted to have some behavioral problems and developmental delays, but the caseworker thought he was adoptable because he was only four years old and was making progress on his issues.

Terri Rese, Otis's cousin by marriage, testified that she had been involved in CO's life and that he spent a lot of time in her home. She wanted a home study to be conducted on her home. Rese agreed that Otis used drugs and had mental problems; she (Rese) kept CO to protect him when it was necessary. Rese stated that around the time of the adjudication, Otis was angry and did not want her visiting or having CO.

Otis testified that she had paranoid schizophrenia with hallucinations, but she took medications. She agreed that her drug of choice was PCP, having used it about two weeks before the termination hearing. She acknowledged that she needed to stay off drugs but said she was working on it; she testified that she did drugs because she missed CO so much. She said that she had gotten furniture for her apartment. She stated that although the apartment had water and lights, there was no gas. Otis loved her son and wanted him to come home, but if not with her, then she wanted him placed with family members (her cousin or grandmother). She said she just needed a little more time because she had realized how important he was to her and she was making progress.

At the conclusion of the evidence, DHS and the child's attorney ad litem argued that termination of her parental rights was the proper outcome, given her mental-health problems, drug problems, lack of compliance, and lack of proper housing. Otis's attorney argued that she should be given a...