Oldham v. Arkansas Department of Human Services

Cite as 2015 Ark. App. 490

ARKANSAS COURT OF APPEALS
DIVISION II
No. CV-15-279

MICHELLE OLDHAM Opinion Delivered September 16, 2015
APPELLANT
APPEAL FROM THE PULASKI
V. COUNTY CIRCUIT COURT,
ELEVENTH DIVISION
[NO. 60JV-2013-2056]
ARKANSAS DEPARTMENT OF
HUMAN SERVICES HONORABLE PATRICIA JAMES,
APPELLEE JUDGE

AFFIRMED

CLIFF HOOFMAN, Judge

Appellant Michelle Oldham appeals from the order of the Pulaski County Circuit

Court terminating her parental rights to her two children, J.W. and J.O. On appeal, Oldham

challenges the sufficiency of the evidence to support the termination. We affirm.

The facts giving rise to this case began on December 17, 2013, when fifteen-day-old

J.O. was brought to the hospital with a skull fracture. When Oldham was informed that J.O.

needed to be admitted, she began acting manic, shouting at the staff, and threatening to take

her child home. Law enforcement was called, and Oldham was then arrested on an

outstanding warrant for failure to pay a fine. The Arkansas Department of Human Services

(DHS) was notified and filed a petition for emergency custody of J.W. and J.O., due to the

lack of a legal caretaker for the children and concerns about Oldham’s mental status.

According to the affidavit attached to the petition, Oldham explained that her unpaid fine was
Cite as 2015 Ark. App. 490

from when she was on probation for a domestic-violence conviction and that J.O. had

received the skull fracture after one-year-old J.W. pulled J.O. off the bed. Oldham denied

that she had a mental illness or that she was currently on any medication.

An order for emergency custody was entered by the circuit court on December 20,

2013, and a probable-cause order was entered on December 30, 2013. The circuit court

ordered Oldham to obtain a psychological evaluation, a drug-and-alcohol assessment, a

counseling assessment, and a medication-management assessment. The court further ordered

random drug screens and twice-weekly supervised visitation, and Oldham was also required

to complete parenting classes and to maintain stable housing, employment, and income.

The adjudication hearing was held on February 24, 2014, and the circuit court found

that the children were dependent-neglected based on the allegations of parental unfitness

contained in the emergency petition for custody. The court found that Oldham had not

attended her scheduled drug-and-alcohol assessment and that she had failed to attend the first

portion of her psychological evaluation because she claimed that it was too cold outside to

ride the bus. Oldham was told not to come for the second scheduled portion of her

evaluation because she had not yet completed the first part; however, Oldham showed up

anyway and was then asked to leave after she threatened the staff. Her evaluation was reset

for March 3. The court noted at the adjudication that Oldham was now homeless and staying

in various motels. Oldham continued to deny that she had been diagnosed with a mental

illness. The circuit court found that, although there had been a true finding for inadequate

supervision against Oldham due to the circumstances surrounding J.O.’s skull fracture, the

2
Cite as 2015 Ark. App. 490

“bigger problem” was Oldham’s untreated mental disease, which placed the children at risk.

In addition, the court found that Oldham had no stable housing. The goal of the case was

set as reunification with Oldham, and prior orders remained in place, with the court

emphasizing that Oldham was to undergo the psychological evaluation as scheduled, to follow

through with her individual therapy, and to become stable so that she did not have to rely on

others for assistance.

Oldham failed to attend her next scheduled psychological evaluation and was

eventually seen by Dr. Paul Deyoub on April 8, 2014. A report from the evaluation was

introduced at the May 2014 review hearing. Dr. Deyoub diagnosed Oldham with “Bipolar

Disorder, Manic, Severe” and “Child Neglect, Possibly Abuse.” He stated that Oldham had

a long history of mental illness and “absolutely no insight” into her condition. He further

stated that there was no way the children could be returned to Oldham’s custody unless she

had a significant period of remission. Dr. Deyoub stated that Oldham needed to see a

psychiatrist, be compliant with her medication, obtain stable housing and sufficient income

to support the children, and attend anger-management and parenting classes. While he did

recommend therapeutic services, Dr. Deyoub indicated that Oldham’s mental illness was so

chronic that he did not see how the children could be safely returned.

Based on the evidence presented at the review hearing, the circuit court found that

Oldham had not been compliant with the case plan. Oldham was living with a friend and had

not obtained a stable home; she was unemployed and typically spent all of her disability

income by the second week of each month; she had been released from therapy for lack of

3
Cite as 2015 Ark. App. 490

attendance; she had failed to attend an appointment for a medication assessment; visitations

with the children had not gone well due to Oldham’s behavior and were being reduced to

once per week; and she continued to deny having bipolar disorder and refused to take

medication for it. The court found that Oldham’s lack of insight demonstrated no desire on

her part to get better. With regard to Oldham’s homelessness, the court noted that the places

she stayed were not even safe for her, much less her children. The court authorized the

attorney ad litem to file a termination petition, although DHS was ordered to continue

providing services to Oldham.

A joint petition to terminate Oldham’s parental rights was filed by DHS and the

attorney ad litem on September 30, 2014, alleging the “other factors” ground for termination

contained in Ark. Code Ann. § 9-27-341(b)(3)(B)(vii) (Supp. 2013). The petition also alleged

that termination was in the children’s best interest.

The joint permanency planning/termination hearing was held on November 19, 2014.

At the hearing, Dr. Deyoub testified about Oldham’s history of mental illness. Based on her

lack of insight and refusal to take medication, Oldham had not responded positively to

treatment in the past, and Dr. Deyoub indicated that she had a very poor prognosis going

forward. He explained that Oldham’s diagnostic tests demonstrated significant schizophrenic

and paranoia elevations, leading to many of the same problems with thinking and reasoning

ability that schizophrenics experience. According to Dr. Deyoub, Oldham also scored in the

significant range on the Child Abuse Potential Inventory (CAP) test. Dr. Deyoub opined that

J.W. and J.O. would not be safe in Oldham’s care unless there was evidence that she was

4
Cite as 2015 Ark. App. 490

complying with treatment and free of symptoms for a significant period of time.

Samantha Parsons, the DHS caseworker assigned to the family, testified that the

services offered to Oldham included parenting classes, random drug screening, a psychological

evaluation, individual therapy, anger management, bus passes, visitation, and case

management. Parsons indicated that Oldham was in partial compliance with the case plan,

as she had participated in all of these services but had not obtained stable housing or

employment as ordered by the circuit court. In addition, Parsons testified that, even though

Oldham had undergone parenting classes and anger-management therapy, she still had issues

with anger and with making appropriate parenting decisions, which Parsons had witnessed

during visitation. Parsons stated that she had attempted to assist Oldham with budgeting

issues; however, Oldham was still unable to support herself with her $721 in monthly

disability income, all of which was usually spent in the first few days of each month. Parsons

testified that DHS was recommending termination of Oldham’s parental rights due to her

mental issues, unstable housing, and unemployment. Parsons further stated that it was in the

children’s best interest that they be adopted due to the potential harm from Oldham’s mental

illness, which she still refused to acknowledge, and Oldham’s unstable relationship with the

children’s father.

Wendy Childs, an adoption specialist with DHS, testified that the children were

adoptable. She indicated that she had identified thirty-five families that matched the children’s

criteria, including their ages and family history.

Oldham testified that she had done her best to comply with the case plan in order to

5
Cite as 2015 Ark. App. 490

have her children returned, although she believed that she had done nothing wrong. She

denied that she suffered from bipolar disorder or that she had a problem with anger.

Although she admitted that her sources of income were limited, she claimed that she could

support her children if they were returned to her custody because she could get assistance

from family and church members. Oldham testified that she did not currently have a

residence of her own but indicated that they could stay at the home of the children’s aunt and

uncle. She admitted, however, that she had gotten into an argument with the children’s

father and aunt the night before the hearing and had been asked to leave. Oldham testified

that at the time the children were removed in December 2013, she had a home and was

receiving assistance with her rent from a charitable organization. However, she was asked to

vacate that residence in January 2014 and had been staying at motels or with friends since that

time.

After hearing all the evidence, the circuit court entered an order on January 13, 2015,

finding that the ground for termination alleged with respect to Oldham was proved by clear

and convincing evidence. The court also found that there was clear and convincing evidence

that termination of Oldham’s parental rights was in the best interest of the children based on

the likelihood that they would be adopted and the potential harm to their health and safety

if they were to be returned to their mother. Oldham has timely appealed from this order.1

The rights of natural parents are not to be passed over lightly; however, parental rights

1
The parental rights of the children’s father, Jerry Webb, were also terminated in the
same order; however, he is not a party to this appeal.

6
Cite as 2015 Ark. App. 490

will not be enforced to the detriment or destruction of the health and well-being of the child.

J.T. v. Ark. Dep’t of Human Servs., 329 Ark. 243, 947 S.W.2d 761 (1997). A trial court’s

order terminating parental rights must be based upon findings proved by clear and convincing

evidence. Ark. Code Ann. § 9-27-341(b)(3) (Supp. 2013); Dinkins v. Ark. Dep’t of Human

Servs., 344 Ark. 207, 40 S.W.3d 286 (2001). Clear and convincing evidence is defined as that

degree of proof that will produce in the fact finder a firm conviction as to the allegation

sought to be established. Dinkins, supra. On appeal, the appellate court will not reverse the

trial court’s ruling unless its findings are clearly erroneous. Id. 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, an appellate court gives due deference to the

opportunity of the trial court to judge the credibility of witnesses. Id.

Pursuant to Ark. Code Ann. § 9-27-341(b)(3), an order terminating parental rights

shall be based upon a finding by clear and convincing evidence that it is in the best interest

of the juvenile, including consideration of the likelihood of adoption and the potential harm,

specifically addressing the effect on the health and safety of the child, caused by continuing

contact with the parent. The order terminating parental rights also must be based on a

showing of clear and convincing evidence as to one or more of the grounds for termination

listed in section 9-27-341(b)(3)(B).

The ground for termination relied upon by the circuit court in this case was the “other

factors” ground contained in Ark. Code Ann. § 9-27-341(b)(3)(B)(vii)(a) (Supp. 2013), which

7
Cite as 2015 Ark. App. 490

states as follows:

Subsequent to the filing of the original petition for dependency-neglect, other factors
or issues arose which demonstrate that return of the juvenile to the family home is
contrary to the juvenile’s health, safety, or welfare and that, despite the offer of
appropriate family services, the parent has manifested the incapacity or indifference to
remedy the subsequent issues or factors or rehabilitate the parent’s circumstances,
which prevent return of the juvenile to the family home.

As support for its decision to terminate on this ground, the circuit court relied on Oldham’s

diagnosis of bipolar disorder from Dr. Deyoub, Oldham’s lack of insight into her disorder, her

refusal to acknowledge her mental illness despite participation in counseling, and her

instability throughout the case with regard to her housing and income. The court noted that

Oldham’s mental illness was apparent in her testimony at the hearing, which was

contradictory and disjointed. Based on Oldham’s instability, denial, and lack of insight, the

court found that she was “incapable of remedying these and other subsequent issues so that

the children could safely be placed with her” and that she was “not capable of being the type

of parent these children need.”

Oldham argues that there was insufficient evidence to support the circuit court’s

decision to terminate on this ground because her mental illness was not a factor that occurred

subsequent to her children’s removal. She contends that her mental health was detailed in the

petition for emergency custody, as well as in her mental health records prior to removal.

While there were concerns about Oldham’s mental stability at the time of the children’s

removal and at the time the petition for emergency custody was filed based on her erratic and

volatile behavior at the hospital, the primary reason for the seventy-two-hour hold on the

children was the lack of a legal caretaker when Oldham was arrested. It was subsequent to

8
Cite as 2015 Ark. App. 490

the petition for emergency custody that Oldham’s past medical records were submitted to the

court and that she was evaluated and diagnosed by Dr. Deyoub. Furthermore, Oldham’s lack

of insight regarding her mental illness, despite her participation in therapy, was discovered

subsequent to the filing of the emergency petition and was an important factor that the circuit

court relied on in determining that termination was warranted. In addition, Oldham became

homeless after the children were removed, and she failed to remedy her unstable housing and

income throughout the entirety of the case.

Oldham asserts that she should have been given a full twelve months to work toward

reunification; however, the “other factors” ground does not require that the children remain

out of the home for at least twelve months before termination can occur. Ark. Code Ann.

§ 9-27-341(b)(3)(B)(vii)(a). She also contends that this ground for termination requires DHS

to have offered “appropriate family services” and that there was no evidence that reasonable

accommodations or meaningful services were offered to her, despite her known mental

disability. See Ark. Code Ann. § 9-27-341(b)(3)(B)(vii)(b) (requiring that DHS make

reasonable accommodations in accordance with the Americans with Disabilities Act to parents

with disabilities in order to allow them meaningful access to reunification and family

preservation services). This particular argument is not preserved for our review and need not

be addressed because Oldham failed to raise this issue below; nor did she challenge the circuit

court’s findings throughout the case that appropriate services had been offered to her by DHS.

Weathers v. Ark. Dep’t of Human Servs., 2014 Ark. App. 142, 433 S.W.3d 271; Gilmore v. Ark.

Dep’t of Human Servs., 2010 Ark. App. 614, 379 S.W.3d 501. In addition, Oldham’s

9
Cite as 2015 Ark. App. 490

argument that the circuit court should not have relied solely on her psychological evaluation

with Dr. Deyoub, but should have also required testimony about her treatment plan and

prognosis from her current therapists, was not raised below and is not preserved for appellate

review. Weathers, supra. Given the evidence regarding Oldham’s instability, mental illness,

and complete lack of insight about her illness, the circuit court did not clearly err by finding

that the “other factors” ground for termination was proven.

Oldham also challenges the circuit court’s finding that it was in her children’s best

interest for her parental rights to be terminated. She does not contest the circuit court’s

finding that the children were adoptable, and she further concedes that there would be

potential harm to her children if they were subjected to her homelessness and to her untreated

bipolar disorder. However, she argues that these issues were the result of her not being

offered appropriate services. Oldham asserts that there would be no potential harm to her

children by allowing her additional time for further mental health treatment and other

services. With regard to her argument about not being offered meaningful services, we have

already held that this argument is not preserved for our review. Furthermore, the circuit

court specifically found that if Oldham were given additional time, it would not make any

appreciable difference toward reunification given her lack of progress in managing her mental

illness. The court also found that it was not in the children’s best interest for them to

“needlessly languish in foster care” for an additional period of time. Based on the evidence

in this case, the circuit court’s best-interest finding was not clearly erroneous, and we affirm

the termination order.

10
Cite as 2015 Ark. App. 490

Affirmed.

GLADWIN, C.J., and WHITEAKER, J., agree.

Dusti Standridge, for appellant.

Mischa K. Martin, Office of Chief Counsel, for appellee.

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

11