Peggy Kilpatrick v. Arkansas Department of Human Services and Minor Children

Cite as 2020 Ark. App. 342
Reason: I attest to the accuracy
ARKANSAS COURT OF APPEALS
and integrity of this document
Date: 2021-07-07 12:49:42
Foxit PhantomPDF Version: DIVISION III
9.7.5 No. CV-20-40

Opinion Delivered: June 3, 2020

PEGGY KILPATRICK
APPELLANT APPEAL FROM THE MADISON
COUNTY CIRCUIT COURT
V. [NO. 44JV-17-28]

ARKANSAS DEPARTMENT OF HONORABLE STACEY
HUMAN SERVICES AND MINOR ZIMMERMAN, JUDGE
CHILDREN
APPELLEES AFFIRMED

MIKE MURPHY, Judge

Appellant Peggy Kilpatrick appeals from the Madison County Circuit Court order

terminating her parental rights to her children, E.M. (DOB: 11-11-2004), J.K. (DOB: 12-

29-2011), and B.M. (DOB: 1-12-2015). On appeal, Kilpatrick argues that the termination

order was not supported by sufficient evidence. She challenges only the circuit court’s best-

interest finding.1 We affirm.

On April 27, 2017, the Arkansas Department of Human Services (“Department”)

exercised an emergency hold on E.M., J.K., and B.M. and filed a petition for emergency

custody and dependency-neglect. The affidavit supporting the petition alleged that the

Department received a report that Kilpatrick had physically abused E.M., which resulted in

her arrest for domestic battery and endangering the welfare of a minor. The Department

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The circuit court also terminated the parental rights of the children’s respective
fathers, but they are not parties to this appeal.
noted that it had been involved with the family since 2008 and had made services available

to prevent removal from the home. That first contact with Kilpatrick was due to an

inadequate-shelter investigation. However, that case was closed when Kilpatrick fled, and

the Department was unable to locate her. The next case was opened in May 2013 and lasted

until April 2014. It was opened due to domestic violence between Kilpatrick and her

husband; both were found to be highly intoxicated while E.M. and J.K. were present. In

July 2015, a protective-services case was opened because J.K. almost drowned while in

Kilpatrick’s custody. In November 2016, while in Kilpatrick’s custody, E.M. beat and

strangled J.K., which required J.K. to be hospitalized.

The circuit court entered an ex parte order of emergency custody, and upon

conducting a probable-cause hearing, it found that probable cause existed for the children

to remain in the Department’s custody. The children were adjudicated dependent-neglected

on June 23 due to abuse, neglect, and parental unfitness. The circuit court established a goal

of reunification and ordered Kilpatrick to comply with the standard welfare orders of the

Department. The children were originally placed in the custody of their maternal aunt and

uncle. After an allegation that E.M. had molested his aunt’s stepson and his uncle was

arrested for aggravated assault, the children were placed back in the Department’s custody.

In the order for emergency change of custody, the court found that it was not in the

children’s best interests to be placed together and ordered E.M. be placed in a home separate

from his siblings.

In an October 27 review hearing, the court continued the goal of reunification and

found Kilpatrick was not in compliance with the case plan. Specifically, she had not

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completed her psychological evaluation, submitted to all random drug screens, or attended

all her visits with J.K. and B.M. However, on February 23, 2018, the circuit court held a

permanency-planning hearing and authorized a trial home placement with J.K. and B.M.

based on Kilpatrick’s compliance. On July 24, due to the success of the trial home

placement, the court placed J.K. and B.M. back in Kilpatrick’s legal custody. On November

20, after only four months, the children returned to the Department’s custody when

Kilpatrick was arrested for DWI and two counts of child endangerment after she was

involved in a single-car rollover accident with J.K. and B.M. in the car.

On December 7, the court held a review hearing and found that Kilpatrick had made

minimal progress toward completing the court orders and case plan despite the Department’s

reasonable efforts to provide family services to achieve the goal of reunification. On

February 8, 2019, the Department filed a motion to terminate reunification services. On

March 29, following a hearing, the court granted the motion on the aggravated-

circumstances ground. It specifically found that due to Kilpatrick’s involvement with the

Department since 2008, arrests, and failure to resolve her alcohol abuse, there was little

likelihood that continued services would result in a reunification. Additionally, the circuit

court found that Kilpatrick’s alcohol abuse caused trauma to the juveniles, that J.K. had

PTSD, and that B.M. had a diagnosis that was a precursor to PTSD.

At that same hearing, the court changed the goal of the case to adoption. It found

that Kilpatrick had complied with most of the court orders and case plan but that she had

not demonstrated an ability to protect the children and keep them safe from harm. On May

1, the Department filed a petition to terminate Kilpatrick’s parental rights. On September

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27, the court held a termination-of-parental-rights hearing during which it took testimony

from Kilpatrick, her probation officer, J.K.’s therapist, E.M.’s therapist, the Department’s

caseworker, Kilpatrick’s new husband, and an acquaintance of Kilpatrick. At the conclusion

of the hearing, the court terminated Kilpatrick’s parental rights on the following grounds:

failure-to-remedy, Ark. Code Ann. § 9-27-341(b)(3)(B)(i)(a) (Supp. 2019); subsequent-

factors, Ark. Code Ann. § 9-27-341(b)(3)(B)(vii); and aggravated circumstances, Ark. Code

Ann. § 9-27-341(b)(3)(B)(ix)(a)(3)(A)–(B)(i).

The circuit court found that it was in the juveniles’ best interest to terminate

Kilpatrick’s parental rights on the basis of the juveniles’ adoptability and the potential harm

they would suffer if returned to Kilpatrick’s custody. Key findings from the court’s

termination order included its conclusion that Kilpatrick had not addressed the root cause

of the case because as recently as four months before the hearing, she was arrested, spent

thirty days in jail, and is now on probation for two years for two felony counts of

endangering the welfare of a minor. It noted that Kilpatrick’s current husband was recently

arrested for possession of drug paraphernalia. The court also found that throughout the

Department’s eleven-year involvement with the family, Kilpatrick had continually exposed

the children to violence and her intoxication. The court further found that there was little

likelihood that continued services and additional time would result in successful

reunification. The court found that the children are adoptable. It noted that B.M. is well-

adjusted. As to J.K., it found that while he does have major behavioral issues, they are due

to trauma caused by Kilpatrick, and he is improving. Lastly, it acknowledged E.M.’s desire

to not be adopted but explained that he does not know what a safe, stable family is. The

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court found that returning the children to Kilpatrick’s custody would subject them to a

substantial risk of harm because the children need stability that she is unable to provide. The

court terminated Kilpatrick’s parental rights, and this appeal follows.

We review termination-of-parental-rights cases de novo. Heath v. Ark. Dep’t of

Human Servs., 2019 Ark. App. 255, at 5–6, 576 S.W.3d 86, 88–89. We review for clear

error, and 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 court may order termination of parental rights if it finds clear

and convincing evidence to support one or more statutory grounds listed in the Juvenile

Code, Ark. Code Ann. § 9-27-341(b)(3)(B), and that termination is in the best interest of

the child, taking into consideration the likelihood of adoption and the potential harm to the

health and safety of the child that would be caused by returning him or her to the custody

of the parent. Ark. Code Ann. § 9-27-341(b)(3)(A).

On appeal, Kilpatrick does not challenge the court’s finding that the Department

proved grounds for termination. Her only argument for reversal relates to best interest. In

making a best-interest determination, the circuit court must look at all the circumstances,

including the potential harm of returning the children to their parents’ custody, specifically

the effect on the children’s health and safety, and it must consider the likelihood that the

children will be adopted. Ark. Code Ann. § 9-27-341(b)(3). Kilpatrick does not challenge

the adoptability finding, so we address only the potential-harm prong of the circuit court’s

best-interest finding.

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In assessing the potential-harm factor, the circuit court is not required to find that

actual harm would result or to identify specific potential harm. Gonzalez v. Ark. Dep’t

Human Servs., 2018 Ark. App. 425, at 12, 555 S.W.3d 915, 921. Additionally, “a parent’s

failure to comply with court orders is sufficient evidence of potential harm, and . . . a failed

trial home placement may be considered evidence of potential harm.” Id. at 12–13, 555

S.W.3d at 921–22. Further, potential harm includes a child’s lack of stability in a permanent

home; a court may consider a parent’s past behavior as a predictor of future behavior. Id. at

12, 555 S.W.3d at 921.

We hold that the circuit court did not err in finding that termination of Kilpatrick’s

parental rights was in her children’s best interest. The circuit court must consider a parent’s

compliance and behavior during the entire dependency-neglect case as well as the evidence

presented at the termination hearing to decide whether the termination is in the children’s

best interest. Ark. Code Ann. § 9-27-341(a)(4). Here, the case began because Kilpatrick was

arrested for domestic battery and endangering the welfare of a minor. During the

dependency-neglect case, Kilpatrick was arrested for two more counts of child

endangerment. An event that ended the trial home placement. Throughout the two-year

case, Kilpatrick has failed to fully comply with the case plan. Further, despite meaningful

services from the Department for eleven years, Kilpatrick has time and again displayed that

she cannot keep her children safe from harm.

Kilpatrick argues that the court’s best-interest finding should be reversed because the

children were more at risk in foster care than in her care. She asserts that there would be no

harm in reversing the termination order and extending her additional time and services

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because the children were not in an adoptive placement at the time of termination and that

the likelihood that it would happen soon was suspect.

In Jones-Lee v. Arkansas Department of Human Services, we held that

[a parent] cannot create the condition that caused her children to be placed in foster
care and then argue that the instability of the foster-care system precludes the circuit
court from finding that returning her children to her poses greater potential harm
than having the children remain in the foster-care system. Foster care is not meant
to be a stable, long-term solution, which is precisely why parents are given limited
time to comply with the case plan, and why reunification must be achieved within a
reasonable time, from the children’s perspective.

2009 Ark. App. 160, at 16, 316 S.W.3d 261, 270.

Here, the caseworker testified that all three children are likely to be adopted. A

juvenile’s need for permanency and stability overrides a parent’s request for additional time

to improve circumstances, and we will not enforce parental rights to the detriment of the

well-being of the children. Dean v. Ark. Dep’t of Human Servs., 2020 Ark. App. 286, at 4–

5, 600 S.W.3d 136, 139. Even though the children were not in an adoptive placement at

the time, the circuit court’s finding that termination of Kilpatrick’s rights was in the

children’s best interest was not clearly erroneous.

Affirmed.

GRUBER, C.J., and BROWN, J., agree.

Victoria Morris, for appellant.

Ellen K. Howard, Office of Chief Counsel, for appellee.

Kimberly Boling Bibb, attorney ad litem for minor children.

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