Cassandra Nelson v. Arkansas Department of Human Services and Minor Children

Cite as 2024 Ark. App. 444
ARKANSAS COURT OF APPEALS
DIVISION III
No. CV-24-291

CASSANDRA NELSON Opinion Delivered September 25, 2024

APPELLANT
APPEAL FROM THE UNION
COUNTY CIRCUIT COURT
V. [NO. 70JV-23-50]

ARKANSAS DEPARTMENT OF HONORABLE RYAN PHILLIPS,
HUMAN SERVICES AND MINOR JUDGE
CHILDREN
APPELLEES AFFIRMED

ROBERT J. GLADWIN, Judge

Cassandra Nelson appeals the February 15, 2024 order of the Union County Circuit

Court terminating her parental rights to her children, MC1 and MC2. Cassandra argues

that circuit court erred in terminating her parental rights because it was not in the children’s

best interest and was contrary to the purpose of the Juvenile Code. We affirm.

I. Facts and Procedural History

On May 6, 2023, MC2 was born at Cassandra’s home. Cassandra and MC2 were

brought to the hospital around 11:50 p.m. that day where staff noticed that Cassandra

appeared to be impaired. She tested positive for methamphetamine and fentanyl. Cassandra

was too impaired to answer any questions or function properly, and MC2 was reported to

be withdrawing as a result of Cassandra’s drug use, although no test results were received

from MC2 at that time.
On May 18, the Arkansas Department of Human Services (“DHS”) exercised a

seventy-two-hour emergency custody hold of MC2 due to Garrett’s Law1 and because

Cassandra had not been to see MC2 in the NICU and had failed to meet MC2’s need for

medical coverage by failing to apply for Medicaid.

DHS had closed a ten-month protective-services case in February after Cassandra had

tested positive for THC and buprenorphine after the birth of MC1, MC2’s half sibling, on

April 24, 2022. Cassandra was provided with drug treatment as part of that case, but she

failed to remain sober.

On May 22, the circuit court was presented with a petition for ex parte emergency

custody and dependency-neglect. DHS submitted that Cassandra’s substance abuse seriously

impairs her ability to supervise, protect, or care for MC2. It was noted that Cassandra’s

history with DHS indicated previous Garrett’s Law issues within the last twelve months and

that there had been no change in behavior to complete sobriety.

Additionally, DHS filed for less-than-custody protection for MC1. MC1 was residing

with Jackie Nelson, her maternal grandmother, at the time of MC2’s birth. MC1 had been

in Jackie’s care since birth, and although DHS did not take physical custody of MC1, she

was added as a party because DHS had an investigative history with Cassandra at the time of

1
Arkansas Code Annotated section 9-27-303(37)(B)(i) (Supp. 2023), also known as
Garrett’s Law, was passed in 2005 to expand the definition of child neglect. The law makes
it a form of child neglect for a pregnant person to knowingly use illegal substances before
giving birth and also allows medical professionals to report mothers to police and child
protective services if a newborn tests positive for illegal drugs.

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MC1’s birth and because Cassandra had been in the same home, and DHS believed that

MC1 needed to be protected from Cassandra. Jackie asked Cassandra to move out of the

home so that MC1’s placement would not be disrupted, and Cassandra complied.

On May 23, the circuit court entered an ex parte order for emergency custody. The

circuit court also held a probable-cause hearing on the same day, and on June 15, the circuit

court entered a probable-cause order finding that probable cause existed to necessitate

protection by DHS and that probable cause continued to exist at the time of the hearing for

the emergency order to remain in place, including the protections for MC2 and keeping

MC2 in the custody of DHS. Additionally, it confirmed that Cassandra could not reside in

the home with MC1, who was staying with her maternal grandmother. The order provided

for supervised visitation and development of a case plan.

An adjudication hearing followed on June 5, after which the circuit court entered an

order on June 23 finding both children dependent-neglected pursuant to Garrett’s Law. The

order provided that the case plan goal be reunification. MC2 was to remain in the custody

of DHS, and MC1 was to remain with Jackie. Cassandra was ordered to follow the case plan

and court orders—to obtain and maintain stable, clean, adequate, and suitable housing with

working utilities; to obtain and maintain stable employment or sufficient income; to

complete parenting classes; to submit to random drug screens and test negative; to complete

a substance-abuse assessment and follow the recommendations; to undergo a psychological

evaluation; and to attend and participate in individual counseling. Her visitation was to

remain supervised. The adjudication order was not appealed.

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On September 18, 2023, the circuit court held a review hearing and entered a separate

order for Cassandra to submit to a hair-follicle drug screen. At the review hearing, the circuit

court ordered that the case plan goal remain reunification and that MC2 remain in the

custody of DHS and MC1 to remain with Jackie. The court also found that Cassandra had

not complied with the case plan and had not demonstrated progress.

Due to Cassandra’s lack of compliance, DHS expedited the termination of her

parental rights (“TPR”), alleging in two separate petitions—the first filed on September 20,

and the second on December 13—aggravated circumstances pursuant to Arkansas Code

Annotated section 9-27-341(b)(3)(B)(ix)(a)(3)(A) & (B)(i) (Supp. 2023) and subsequent factors

pursuant to section 9-27-341(b)(3)(B)(vii)(a) as grounds. The second TPR petition also alleged

that Cassandra had abandoned the children pursuant to section 9-27-341(b)(3)(B)(iv). DHS

asserted that adoption was the appropriate permanency plan for MC1 and MC2.

On December 18, the circuit court held another review hearing in which it continued

the goal of reunification. At this hearing, the circuit court ordered that MC1 remain with

Jackie and MC2 remain in the custody of DHS. Additionally, the circuit court found that

genetic-testing results revealed that there was a zero percent chance that Jordan Keaster is

MC2’s father. The circuit court also found that Cassandra had not complied with the case

plan and orders of the court and had not demonstrated progress toward the goal of the case.

On February 5, 2024, the circuit court held a hearing on the TPR petition. The

caseworker, Iesha Howard, reiterated what the various orders demonstrated—that Cassandra

had not complied with the case plan services, that she continued to use drugs, and that she

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was too unstable to parent. Howard believed that Cassandra did not have a bond with the

children. The adoption specialist, Parisse Watson, testified that both children are likely to

be adopted as a permanency plan—with 197 potential matching families, and she identified

Jackie Nelson as an adoptive resource for MC1 and Dana Keaster as an adoptive resource

for MC2.

Cassandra testified in her defense and confirmed that she was living with a friend,

lacked the means to support herself, was without a vehicle and employment, and had not

completed services intended to assist her in becoming drug-free and stable. She

acknowledged that she had not yet bonded with MC2, but she disagreed that she was not

bonded with MC1, given that she had lived with MC1 in her mother’s home and had

continued to visit MC1 there during the pendency of the case.

At the end of her testimony, Cassandra read a letter she had prepared, admitting her

failures, acknowledging that she had been lying to everyone and herself about not needing

help, and asking for time, even though she understood the evidence against her. She

expressed concern about her children feeling abandoned and suffering from self-esteem

issues due to her absence, and she asked for the full time allotted under the statute so she

could enter treatment for herself and for her children. She noted that she—on her own—had

scheduled an appointment at New Horizons for the following day.

In closing, DHS’s counsel acknowledged that the case had been open for only nine

of the usual twelve months, but he did not believe the additional three months would change

the outcome of the case. Cassandra’s counsel countered that “a lot can happen in three

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months,” that Cassandra had openly acknowledged her failures, and an extension would not

be an additional three months but rather would round out the twelve-month time period

that is normally provided in the standard course of dependency-neglect cases. He noted that

nothing would change from the children’s perspective because there would be no “harm” in

allowing Cassandra to demonstrate what she had orally expressed.

The circuit court found Cassandra neither credible nor trustworthy, that she had

chosen to “do nothing at all in this case,” and that it had no confidence that she would do

anything over the course of three more months to warrant reunification, specifically stating:

It is clear from a credibility standpoint quite simply that [Cassandra] has none.
In this matter, there was nothing rebutting many of the claims as far as her testimony
that were totally inconsistent. The other thing the Court’s gotta look at is quite
frankly if I gave her more time, I don’t know how I can evaluate that. The
uncontradicted testimony is that she falsified urine tests. So, I can’t even trust
monitoring whatever she may do between now and three months from now.

She has certainly had the opportunity to have much more contact with the
minor children. She has not shown any inclination to do that.

She comes in talking about deficiencies in her mental health, yet, she has done
nothing to try to address that, despite that fact it was ordered by the Court. Same on
the drug treatment. Today, she decides she needs the treatment again. She’s had the
opportunity to do that in the past.

Essentially, she has chosen to do nothing at all in this case and based upon
that the Court has no confidence at all that she will do anything that would warrant
reunification in this case or firmly believes if the children were to go back in her
custody, their safety and welfare would be in imminent jeopardy should they be
placed back into her custody.

The circuit court noted, “Based on Ms. Watson’s testimony, the chances of these two

being adopted are relatively high, given the circumstances, that is favorable.” The circuit

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court memorialized its findings in an order filed on February 15, finding the single ground—

aggravated circumstances based on little likelihood of reunification even with services—in

support of TPR. The circuit court further found that TPR was in the children’s best interest

because they would be subject to potential harm if returned to Cassandra’s custody and that

they were likely to be individually adopted as a permanency plan. Cassandra filed her timely

notice of appeal on February 27.

II. Standard of Review and Applicable Law

Termination-of-parental-rights cases are reviewed de novo. Chevallier v. Ark. Dep’t of

Hum. Servs., 2024 Ark. App. 373, at 8. The appellate inquiry is whether the circuit court’s

finding that the disputed fact was proved by clear and convincing evidence is 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 resolving the clearly erroneous question, we give due regard

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

To terminate parental rights, a circuit court must find by clear and convincing

evidence that termination is in the best interest of the child, taking into consideration (1)

the likelihood the child will be adopted if the termination petition is granted; and (2) the

potential harm, specifically addressing the effect on the health and safety of the child, caused

by returning the child to the custody of the parent. Id. at 9; see Ark. Code Ann. § 9-27-

341(b)(3)(A)(i) & (ii). The order terminating parental rights must also be based on a showing

by clear and convincing evidence as to one or more of the grounds for termination listed in

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section 9-27-341(b)(3)(B). However, only one ground must be proved to support termination.

Chevallier, 2024 Ark. App. 373, at 9.

Because Cassandra does not challenge the circuit court’s findings regarding either

statutory ground, we need not consider those issues. See Houston v. Ark. Dep’t of Hum. Servs.,

2022 Ark. App. 326, at 7, 652 S.W.3d 188, 192. However, unchallenged statutory findings

can “inform” the appellate court on the best-interest issues. Cancel v. Ark. Dep’t of Hum. Servs.,

2022 Ark. App. 198, at 9.

III. Discussion

Although Cassandra does not challenge the circuit court’s aggravated-circumstances

finding, she does challenge the best-interest finding, which must be made separate and apart

from any statutory grounds that might exist and for which DHS continues to carry the

burden of proof. See Ark. Code Ann. § 9-27-341(b)(3)(A) & (B). This court has reversed the

termination of parental rights solely on errors made by a circuit court in its best-interest

findings. See Bunch v. Ark. Dep’t of Hum. Servs., 2017 Ark. App. 374, at 9–10, 523 S.W.3d

913, 919; Cranford v. Ark. Dep’t of Hum. Servs., 2011 Ark. App. 211, at 11–12, 378 S.W.3d

851, 857. Here, Cassandra argues that there were no compelling reasons for TPR and that

TPR was not in the children’s best interest.

Regarding the “best interest” prong, the TPR statute sets out two factors that must be

considered by the circuit court when determining whether TPR is in a child’s best interest—

likelihood of adoptability and potential harm. See Ark. Code Ann. § 9-27-341(b)(3)(A).

However, the court is not limited to those factors, and this court has considered additional

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factors in the best-interest analysis, including (1) preservation of the child’s relationship with

a grandparent; (2) whether a less drastic measure could be employed, such as a no-contact

order or supervised visitation; (3) whether continued contact with the parent would be

beneficial to the child when the child was living with a relative or another parent and not in

an indeterminate state that is working against the child; and (4) whether the child is living

in continued uncertainty. See Bunch, supra; Cranford, supra. Each of those cases resulted in a

reversal of the circuit court’s TPR order and demonstrate that TPR is not always necessary,

especially given that the public interest behind TPR is to ensure that children will obtain

greater stability and permanence and not languish in foster care indefinitely—a circumstance

Cassandra maintains her children did not face. See Phillips v. Ark. Dep’t of Hum. Servs., 2019

Ark. App. 383, at 12, 585 S.W.3d 703, 709–10.

Cassandra submits that there was evidence that MC1 had been in the custody of her

maternal grandmother, Jackie Nelson, since her birth, and that MC2 had been in the custody

of his paternal step-grandmother, Dana Keaster, since birth and that both would be adopted

by those relatives if she is unable to remedy her circumstances. She claims that she was not

toxic to the children; she had a bond with MC1—having lived with her until she complied

with the circuit court’s order to leave the home after this case was opened; she would have

had an additional three months to demonstrate her commitment to treatment had DHS not

been so quick to pursue TPR three months earlier than is normal in these cases; the children

would not suffer any repercussions and their stability would not be threatened if Cassandra

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was given the full twelve-month time period; and there was no reason to terminate under

these facts and precedent.

We disagree and hold that sufficient evidence supports the circuit court’s best-interest

finding. A circuit court determines whether TPR is in a child’s best interest by considering

the likelihood that the child will be adopted and the potential harm to the child if there is

continued contact with the parent. E.g., McNeer v. Ark. Dep’t of Hum. Servs., 2017 Ark App.

512, at 5, 529 S.W.3d 269, 272. These two factors are not essential elements of proof in a

TPR case; thus, neither factor need be established by clear and convincing evidence. Id. at

6–7, 529 S.W.3d at 272–73.

Initially, Cassandra argues on appeal that because the children were in the custody of

relatives, TPR provided no greater stability and permanence, and the children would not

languish in foster care. We hold that she did not preserve this argument for review because

the only argument Cassandra made to the circuit court below was that she be given the “full

twelve months.” See Cole v. Ark. Dep’t of Hum. Servs., 2020 Ark. App. 481, at 11–12, 611

S.W.3d 218, 224–25 (noting that we are precluded from review where the appellant did not

make the less restrictive relative-placement argument she later made on appeal to the circuit

court at the TPR hearing).

Alternatively, even had Cassandra’s argument been preserved, it would still fail.

Cassandra incorrectly asserts that both children were in the “custody” of relatives. It is

undisputed that MC2 remained in the legal custody of DHS for the entirety of the case.

Additionally, although MC2 was temporarily placed with the Keasters, the parents of Jordan

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Keaster who was excluded as MC2’s father, his exclusion makes them nonrelatives regardless

of who had custody. See M.S. v. Ark. Dep’t of Hum. Servs., 2021 Ark. App. 77, at 10, 617

S.W.3d 731, 737 (holding the parents of the putative parent are not relatives as defined by

the code). And although MC1 was placed with a relative—her maternal grandmother, Jackie

Nelson—and the court orders indicated she was to remain in her custody, there is no order

granting Jackie Nelson legal custody in which MC1 could remain. See Tovias v. Ark. Dep’t of

Hum. Servs., 2019 Ark. App. 228, at 1, 575 S.W.3d 621, 622 (reversing TPR where there was

no evidence to support the finding that Tovias was a legal father).

Moreover, the affidavit states that a “less than custody” petition would be filed, which

clarifies that the order likely intended for physical custody of MC1 to remain with Jackie

Nelson, not legal custody, leaving MC1’s permanency in question. See Cummings v. Ark. Dep’t

of Hum. Servs., 2021 Ark. App. 466, at 7, 636 S.W.3d 830, 834 (holding that when a child is

in the legal custody of a relative and not temporary foster-care placement with a relative,

permanency is not at issue but that the child was living with grandparents in a foster-care

placement and thus had not achieved permanency).

Cassandra’s argument that she should have been given an additional three months

also fails because the record before us supports the circuit court’s determination that there

is little hope for reunification. See Moore v. Ark. Dep’t of Hum. Servs., 2024 Ark. App. 4, at 7,

682 S.W.3d 706, 711 (holding when a parent demonstrates stability and a reasonable hope

for reunification, there is no harm in waiting a little longer before terminating parental

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rights; but when that stability and reasonable hope for reunification are not present, there is

no reason to further delay permanency through TPR and adoption).

Specifically, the evidence supports a finding that Cassandra did not have a sustained

bond with either child and visited MC2 only two or three times during the case. She did not

comply with the case plan or demonstrate progress toward the initial goal of reunification;

specifically, she did not demonstrate stability in housing or employment; she abandoned the

children for the majority of the case; and she admitted that she may have to be in drug

treatment for life. See Glover v. Ark. Dep’t of Hum. Servs., 2019 Ark. App. 278, at 12–13, 577

S.W.3d 13, 20–21 (distinguishing Cranford, supra, where the mother had remained

unemployed, only recently obtained her own housing paid for by her father and refused to

admit potential harm due to drug abuse); Foster v. Ark. Dep’t of Hum. Servs., 2018 Ark. App.

418, at 6–7, 559 S.W.3d 762, 766–767 (distinguishing Bunch, supra, where there was no

evidence that Foster showed progress in complying with the case plan and no evidence that

she had a strong bond with the child).

Additional evidence that Cassandra should not continue contact with the children

included testimony from Jackie Nelson, Cassandra’s mother, who stated that she did not

want Cassandra around MC1 because of her behavior while on drugs. See Foster, 2018 Ark.

App. 418, at 6, 559 S.W.3d at 767 (distinguishing Bunch, supra, where there was no evidence

that continued contact with the mother would serve the child’s best interest in any way).

Moreover, evidence in the record demonstrates that Cassandra did not wish to continue any

relationship with MC2.

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Here, DHS provided evidence that TPR is in the best interest of the children, and

the Arkansas Juvenile Code prioritizes adoption with a relative over permanent custody with

a relative. Compare Ark. Code Ann. § 9-27-338(c)(4) (Repl. 2020) with Ark. Code Ann. § 9-

27-338(c)(7). There is no requirement in the Juvenile Code that a parent be provided services

for twelve months before the circuit court hears a TPR petition. See Ark. Code Ann. § 9-27-

338(b)(1)(A). Between the prior protective-services case related to MC1 and this case,

Cassandra did have more than twelve months to benefit from services, yet she still failed to

improve her circumstances. See Milholland v. Ark. Dep’t of Hum. Servs., 2023 Ark. App. 567,

at 7–8, 680 S.W.3d 718, 722 (rejecting the mother’s argument that she was not given the

“statutorily allowed time” where the ground upon which the TPR was granted did not

require proof that the child had been out of the parent’s custody for twelve months and

where there was also no challenge to grounds).

Having reviewed this appeal de novo, we find no clear error in the circuit court’s

findings regarding the children’s best interest. Accordingly, we affirm.

Affirmed.

VIRDEN and MURPHY, JJ., agree.

Leah Lanford, Arkansas Commission for Parent Counsel, for appellant.

Kaylee Wedgeworth, Ark. Dep’t of Human Services, Office of Chief Counsel, for

appellee.

Dana McClain, attorney ad litem for minor children.

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