Smith v. Ark. Dep't of Human Servs. & Minor Children, CV–13–685.

• Decision Date: 18 December 2013
• Docket Number: No. CV–13–685.,CV–13–685.
• Citation: 2013 Ark. App. 753,431 S.W.3d 364
• Parties: Rebekah SMITH and David Wiser, Appellants v. ARKANSAS DEPARTMENT OF HUMAN SERVICES and Minor Children, Appellees.
• Court: Arkansas Court of Appeals

2013 Ark. App. 753

431 S.W.3d 364

Rebekah SMITH and David Wiser, Appellants

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

No. CV–13–685.

Court of Appeals of Arkansas.

Dec. 18, 2013.

Deborah R. Sailings, Arkansas Public Defender Commission, for appellants.

Tabitha Baertels McNulty, Office of Policy and Legal Services, for appellee.

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

RITA W. GRUBER, Judge.

Appellants, Rebekah Smith and David Wiser, appeal from an order of the Benton County Circuit Court terminating their parental rights to their children: D.W., born July 17, 2007, and S.W., born September 18, 2008. On appeal, they argue that the circuit court erred in terminating their rights when (1) the Department of Human Services made no efforts to assist them in reunification, and there was a reasonable expectation that, with additional time, they could obtain stability and care for the children; and (2) there was no testimony at the termination hearing regarding the adoptability of the children. We hold that there was no error, and we affirm the circuit court's order terminating appellants' parental rights.

On March 20, 2012, the Department of Human Services (DHS) exercised an emergency hold over the children after appellants were arrested on drug charges, including manufacturing methamphetamine in the home where the children were living. The parents remained in jail or prison throughout this case: on October 1, 2012, Ms. Smith was sentenced to 60 months in prison plus an additional 120 months suspended, and Mr. Wiser was sentenced to 48 months in prison plus an additional 60 months suspended. At the permanency planning hearing on January 29, 2013, the court changed the goal from reunification to adoption and ordered DHS to explore placement of the children with their maternal grandmother.

The court entered an order terminating appellants' parental rights on May 7, 2013, finding by clear and convincing evidence that termination of parental rights was in the best interest of the children, including consideration of the likelihood that the children would be adopted and the potential harm caused by returning the children to their parents' custody. The court specifically found by clear and convincing evidence that the children were adoptable and that DHS had identified a potential adoptive home for them. The court also specifically found that the parents had used methamphetamine throughout the lives of the children and had a long history of instability and drug use; that there was still a significant time in the lives of the children before their parents would be released from incarceration and thereafter have time to show stability and the ability to remain drug free; that the parents were in the beginning stages of the process of drug treatment and would require long-term treatment upon release from incarceration; that the children needed a permanent home to progress with their own mental-health treatment; that the parents had not seen the children since they were removed on March 20, 2012; and that the mother intended to relocate to California where the children were living when she was released from prison. The court also found the existence by clear and convincing evidence of two statutory grounds: (1) the children had been out of the parents' custody for more than 12 months and, despite a meaningful effort by DHS to rehabilitate the parents and correct the conditions that caused removal, those conditions have not been remedied by the parents; and (2) the parents were sentenced in a criminal proceeding for a period of time that would constitute a substantial period of the children's lives. Ark.Code Ann. § 9–27–341(b)(3)(B)(i), (viii) (Supp.2011).

We review cases involving the termination of parental rights de novo. Grant v. Ark. Dep't of Human Servs., 2010 Ark. App. 636, 378 S.W.3d 227. The grounds for termination must be proved by clear and convincing evidence. Id. When the burden of proving a disputed fact is by clear and convincing evidence, the question on appeal is whether the circuit court's finding that the disputed fact was proved by clear and convincing evidence is clearly erroneous, giving due regard to the opportunity of the circuit court to judge the credibility of the witnesses. Welch v. Ark. Dep't of Human Servs., 2010 Ark. App. 798, at 7, 378 S.W.3d 290, 294. 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. A heavy burden is placed on the party seeking the termination of parental rights because it is an extreme remedy in derogation of the natural rights of the parents. Id. Nevertheless, parental rights will not be enforced to the detriment or destruction of the health and well-being of the child. Welch, 2010 Ark. App. 798, at 7–8, 378 S.W.3d at 294.

The termination of parental rights is a two-step process that requires the circuit court to find that the parent is unfit and that termination is in the best interest of the child. J.T. v. Ark. Dep't of Human Servs., 329 Ark. 243, 947 S.W.2d 761 (1997). 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 children's best interest. Ark.Code Ann. § 9–27–341(b)(3)(A). This includes consideration of the likelihood that they will be adopted and the potential harm caused by returning custody of them to the parent. The court, however, does not have to determine that every factor considered be established by clear and convincing evidence. Instead, after considering all of the factors, the evidence must be clear and convincing that the termination is in the best interest of the child. McFarland v. Ark. Dep't of Human Servs., 91 Ark.App. 323, 210 S.W.3d 143 (2005).

We turn first to appellants' argument that the circuit court erred in terminating their rights because DHS made no effort to assist them in reunification and there was a reasonable expectation that, given additional time, they could have obtained stability and the ability adequately to care for their children. This challenge applies to the ground that the children had been out of the parents' custody for more than 12 months and, despite a meaningful effort by DHS to rehabilitate the parents and correct the conditions that caused removal, those conditions have not been remedied by the parents. Ark.Code Ann. § 9–27–341(b)(3)(B)(i). But the court in this case specifically found an alternative ground by clear and convincing evidence: that is, that appellants had been incarcerated since March 20, 2012, and had received sentences that would constitute a substantial...