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

• Decision Date: 01 February 2017
• Docket Number: No. CV–16–841,CV–16–841
• Citation: 511 S.W.3d 366
• Parties: Shannon TAYLOR, Appellant v. ARKANSAS DEPARTMENT OF HUMAN SERVICES and Minor Children, Appellees
• Court: Arkansas Court of Appeals

511 S.W.3d 366

Shannon TAYLOR, Appellant

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

No. CV–16–841

Court of Appeals of Arkansas, DIVISION II.

Opinion Delivered February 1, 2017

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

Mary Goff, Office of Chief Counsel, for appellee.

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

N. MARK KLAPPENBACH, Judge

Appellant Shannon Taylor appeals the June 27, 2016 order of the Franklin County Circuit Court that terminated her parental rights to her daughter CT (born in January 1999) and her son AT (born in October 2005).¹ Appellant argues on appeal that the trial court's finding, that it was in her children'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 hold that the trial court did not clearly err, and 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.

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. McFarland v. Ark. Dep't of Human Servs. , 91 Ark. App. 323, 210 S.W.3d 143 (2005). 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. It is the "best interest" finding that must be supported by clear and convincing evidence after consideration of the foregoing factors. Id.

The intent behind the termination-of-parental-rights statute is to provide permanency in a child's life when it is not possible to return the child to the family home because it is contrary to the child's health, safety, or welfare, and a return to the family home cannot be accomplished in a reasonable period of time as viewed from the child's perspective. Ark. Code Ann. § 9–27–341(a)(3). Even a parent's full compliance with the case plan is not determinative; the issue is whether the parent has become a stable, safe parent able to care for his or her child. Ford v. Ark. Dep't of Human Servs. , 2014 Ark. App. 226, at 3, 434 S.W.3d 378, 381. Finally, a parent's past behavior is often a good indicator of future behavior. Singleton , supra ; Stephens v. Ark. Dep't of Human Servs. , 2013 Ark. App. 249, 427 S.W.3d 160.

With these parameters of law, we examine the evidence presented to the trial court in this case. The Arkansas Department of Human Services (DHS) exercised an emergency hold on appellant's children, CT and AT, in January 2015, following allegations that appellant's husband, Harold Taylor, sexually abused CT and that the children's older brother, Austin Taylor, was abusive toward AT.² Subsequent to the entry of an ex parte order for emergency custody, the trial court found that probable cause supported the removal of CT and AT from appellant's custody. In March 2015, the trial court entered an order adjudicating these children dependent-neglected based on the sexual abuse inflicted by appellant's husband and appellant's failure to protect the children.

Over the remainder of 2015, there were multiple review hearings conducted that indicated appellant's intermittent compliance and noncompliance with the case plan. The primary issues with regard to appellant were her failure to protect her children, her consistent defense of her husband and disbelief that he had caused the children any harm, her lack of stable housing or employment, and her failure to complete individual counseling or to progress to family counseling.

A permanency-planning hearing was conducted in January 2016, and it was determined that appellant had regressed. She had no housing of her own, no job, and no transportation of her own; she failed to appear after two counseling referrals had been made; she had not taken any action to finalize the divorce proceedings that had been initiated in January 2015; she was "conflicted" and "on the fence" about whether the sexual-abuse allegations were true; she had told a potential witness in her husband's criminal case that the witness did not need to appear in court; she still felt that her husband was a good spouse, provider, and father to the children; and she had permitted AT to see his older brother Austin around New Year's Day although there was a no-contact order in place. Harold Taylor had by this time pleaded guilty to sexually abusing CT and was in prison.³ The trial court found appellant to have not made any significant, measurable progress after a year had passed, that she had chosen her husband over her children, and that she had not demonstrated that she would protect CT and AT from harm. The trial court noted her lack of stable housing, employment, and transportation throughout this case. The trial court changed the goal of the case to adoption, authorizing DHS to file a petition to terminate parental rights.

DHS filed its petition in March 2016, alleging as statutory grounds that the children had been out of their mother's custody for a year and that she had not remedied the causes of removal; that subsequent issues or factors had arisen since the case had begun demonstrating that the children could not be placed with their mother; and that appellant had subjected her children to aggravated circumstances in that there was little likelihood that the provision of additional services would result in a successful reunification. DHS further alleged that it was in the children's best interest that termination of parental rights take place.

The termination hearing was conducted in May 2016. Appellant testified that she was presently living in Oklahoma with two friends (Barbara and James, whose last names she did not know) and their three children; she had lived there about a month but was "working on trying to get out of there." Appellant said that Barbara had an open DHS case, but she did not know why. Appellant had been working at a new job for about a month. She admittedly moved a lot, basically every two to three months, the longest time in one place having been with her father for maybe five months. She admitted that the longest time she had held a job was for three months. Appellant knew that she was supposed to continue individual therapy, but she moved and had no transportation to get there. She had failed to ever attend family therapy, and she had missed the last three visits with her children. She agreed that at age forty, she had not been able "to get a place or a job or a car." She claimed that DHS did not assist her to acquire housing except for a referral or two and had failed to provide her with transportation as needed.

Appellant claimed that she was finally convinced that Harold had committed sexual abuse although she did not want to believe it. She admitted, though, that she had not told the judge or her attorney in the divorce case that there was an open DHS case; instead, she had agreed to joint custody with Harold, a decision she regretted. She claimed that she could now be trusted to protect the children and that she would like to have counseling restarted. She testified that "I will seriously do everything I can to keep them safe. And if I had a vehicle, I would go anywhere and do anything." Appellant asked for another three or four months to get prepared to have CT and AT back in her custody.

The DHS caseworker, Carla Lilley, testified that AT and CT were together in a foster-care placement, were making progress in therapy, and were pretty happy. Lilley recounted the initiation of this DHS case and noted that it had been open for fifteen months. Lilley stated that appellant had never had stable enough housing for trial placements of the children with her. Although Lilley agreed that appellant had made some progress in the case, it did not last.⁴ She said that appellant inappropriately spoke with the children about the sexual-abuse allegations; that she was kicked out of her mother-in-law's home; and that appellant at one point was planning to hitchhike with the children. Lilley testified that DHS had offered transportation and that appellant used it for a lot of...