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

Decision Date09 March 2016
Docket NumberNo. CV–15–854,CV–15–854
Citation2016 Ark. App. 150,486 S.W.3d 229
PartiesRaymond Vail and Samanthia See, Appellants v. Arkansas Department of Human Services and S.S., Minor Child, Appellees
CourtArkansas Court of Appeals

Bristow & Richardson, P.L.L.C., Jonesboro, by: Benjamin W. Bristow, for appellee Raymond Vail.

Leah Lanford, Arkansas Public Defender Commission, for appellant Samanthia See.

Jerald A. Sharum, County Legal Operations, for appellee.

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

ROBERT J. GLADWIN
, Chief Judge

In this termination-of-parental-rights case, both parents, in separate briefs, appeal the Randolph County Circuit Court's order of August 11, 2015, terminating their parental rights and granting to appellee Arkansas Department of Human Services (DHS) the power to consent to adoption. Appellants Raymond Vail and Samanthia See both argue that termination of their parental rights was not in the child's best interest. Raymond also contends that the trial court erred in determining that DHS proved a statutory ground for terminating his parental rights. We affirm.

I. Statement of Facts and Procedural History

A petition for emergency custody and dependency-neglect was filed by DHS on April 7, 2014, alleging that Samanthia and Raymond were the parents of S.S., born April 7, 2013; Samanthia had custody; and Raymond was the legal/putative father. The attached affidavit of the DHS caseworker stated that a protective-services case had been opened on June 26, 2013, when Samanthia left S.S. alone for three hours and failed a drug screen for THC by diluting the specimen with hot water. The case was closed on November 7, 2013, after services, including parenting classes, had been provided. An emergency occurred on April 3, 2014, when Samanthia admitted to not feeding S.S. until after 2:00 p.m., S.S. had a severe diaper rash that had gone untreated, and Samanthia had her roommate, Daniel Honeycutt, caring for S.S. Honeycutt had threatened suicide days prior, and Samanthia had refused to take a drug screen for DHS. A seventy-two-hour hold was taken on S.S. due to the maltreatment and risk of serious harm.

A probable-cause order was filed on April 8, 2014, finding probable cause that the emergency conditions that necessitated removal of custody from Samanthia continued and that S.S. should remain in DHS custody. DHS was to develop an appropriate case plan and provide services. The parents were ordered to view “The Clock is Ticking” video; attend and complete parenting classes; submit to random drug screens, a drug-and-alcohol assessment, and a psychological evaluation; obtain and maintain sufficient income to support the family and safe, clean, and stable housing; permit DHS access to their home; regularly attend visits; notify DHS if transportation was needed; and keep DHS informed of correct telephone numbers and addresses. The order also stated that Raymond should establish paternity.

An adjudication order was filed on May 20, 2014, and the circuit court found that DHS had been involved with the family since May 28, 2013, and services, including parenting classes, home visits, and random drug screens had been provided. These services did not prevent removal because an emergency developed on April 3, 2014, as outlined above. The circuit court found by a preponderance of the evidence that S.S. was dependent-neglected due to Samanthia's environmental and medical neglect. DHS remained the custodian, and the goal of the case was reunification with a parent. The concurrent plan was adoption/guardianship/permanent custody. All prior orders remained in place.

A review order was filed on September 30, 2014, and custody remained with DHS. Raymond was adjudicated to be the father of S.S., and the goal of reunification remained. The circuit court found that Samanthia had been compliant in completing parenting classes, viewing the video, and completing the psychological and drug-and-alcohol assessments and outpatient substance-abuse counseling. She had attended counseling at Mid South, submitted to random drug screens, attended weekly supervised visitations, and maintained a home. However, Samanthia was not compliant in that she tested positive for THC when she performed the drug-and-alcohol assessment; she missed a visit on August 21, 2014; and she did not have sufficient income. The circuit court noted that DHS reported that Samanthia was inconsistent during visits in her concern for S.S., her interaction with S.S., and her affection for S.S.

The circuit court found that Raymond was compliant in completing parenting classes, viewing the video, submitting to drug-and-alcohol and psychological assessments, attending visitation, maintaining income and a home, and submitting to random drug screens. However, Raymond tested positive for THC and opiates on August 12, 2014, and on September 11, 2014, and he had not returned his home-study packet. He was often late for visits, and he had trouble keeping track of visitation days and times. Neither parent was ordered to pay child support.

A permanency-planning order was filed on March 31, 2015, and the circuit court found that return of custody to the parents was contrary to the welfare of S.S., and continuation of custody in DHS was in the child's best interest. The circuit court authorized a plan for adoption with DHS filing a petition for termination of parental rights because (1) S.S. was not being cared for by a relative, and termination was in her best interest; (2) DHS had provided appropriate services; and (3) the permanent goal should be a plan for adoption. Accordingly, the circuit court appointed counsel for Raymond. A home study and drug-and-alcohol assessment on Raymond were admitted in evidence. The circuit court found that, while Samanthia had been partially compliant with the case plan and was continuing to seek disability income after being denied twice, she had not been compliant in that she tested positive for THC at the drug-and-alcohol assessment and for opiates on January 7, 2015. She had missed one visit on August 21, 2014, and she did not have sufficient income. The circuit court specifically noted concerns about Samanthia's credibility. Regarding Raymond, the circuit court found compliance and noncompliance as set forth above and further found that the home-study packet, which was finally submitted in January 2015 due to his not being able to provide a current address, was denied.

DHS filed a petition for termination of parental rights on April 17, 2015, and alleged that (1) S.S. had been out of the custody of the parents for twelve months, and despite meaningful effort by DHS to rehabilitate the parents and correct the conditions which caused removal, those conditions had not been remedied, citing Ark.Code Ann. § 9–27–341(b)(3)(B)(i)(a )

(Repl.2015); (2) subsequent to the filing of the original petition for dependency-neglect, other factors or issues arose which demonstrated that placement of S.S. in the parents' custody would be contrary to her health, safety, or welfare and that despite the offer of appropriate family services, the parents had manifested the incapacity or indifference to remedy the subsequent issues, citing Ark.Code Ann. § 9–27–341(b)(3)(B)(vii)(a ) ; and (3) the parents had subjected S.S. to aggravated circumstances, citing Ark.Code Ann. § 9–27–341(b)(3)(B)(ix)(a ). DHS alleged that, due to her tender age, S.S. was adoptable and that there was potential harm due to the parents' lack of sufficient income and their instability with respect to relationships and employment.

At the termination hearing held on June 23, 2015, Raymond testified that he and Samanthia had never been married to each other and had not lived together. He claimed that S.S. had been in his home almost every weekend and every day he had off work until she was removed by DHS and placed in foster care. He claimed that S.S. was placed in foster care because he stopped going to Samanthia's house and keeping it clean. He admitted to having contact with Samanthia, as he had been to her house on the day prior to the hearing. He explained that he had a prescription for opiates when he tested positive for that, but admitted that he had failed the drug screen for THC, which was his fault. He said that he did not know where he got the marijuana. He said that he had three jobs and had trouble getting his home-study packet returned to DHS. He denied being late for visits and denied having trouble remembering what day his visits were scheduled. He admitted that he did not keep a calendar even though he was shown how to keep one. Since the case began, he had moved three times and had two girlfriends. He said he was currently dating Anna, his fiancée. He admitted that he also had sex with Samanthia twice since the case began. His jobs were at a sawmill and Larry's Pizza, and he had a weekend job cutting timber. He admitted that his income was not sufficient to cover his bills on a monthly basis. He claimed that the only thing he had failed to do was the home study. He further claimed that he did not know of Samanthia's drug problem before DHS became involved.

Samanthia testified that she is S.S.'s mother and that S.S. was almost a year old when she was placed in foster care by DHS. She said,

[T]hey took her because my house is trash. They said she was drinking on a spoiled bottle, and I didn't feed her until two o'clock that afternoon, she had a severe diaper rash, which it actually was a yeast infection

. And it wasn't that bad because I was treating it.

She claimed that she only had problems with keeping a job. She claimed that S.S. had a yeast infection

from antibiotics she had been taking for an ear infection. Samanthia said S.S. was dirty that day because she had been teaching S.S. to walk outside in the dirt. She did not bathe S.S. before her nap because she planned on taking S.S. back outside. She admitted having used marijuana around...

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