Wallace v. Arkansas Department of Human Services

Cite as 2017 Ark. App. 376

ARKANSAS COURT OF APPEALS
DIVISION I
No.CV-16-1127

Opinion Delivered: June 7, 2017
TARA LYNN WALLACE
APPELLANT APPEAL FROM THE PULASKI
COUNTY CIRCUIT COURT,
V. EIGHTH DIVISION
[NO. 60JV-15-1238]
ARKANSAS DEPARTMENT OF HUMAN
SERVICES AND MINOR CHILD HONORABLE WILEY A.
APPELLEES BRANTON, JR., JUDGE
AFFIRMED

MIKE MURPHY, Judge

Appellant Tara Wallace appeals the Pulaski County Circuit Court order

terminating her parental rights to her minor child, D.W. She argues that the State failed to

present sufficient evidence supporting the circuit court’s order terminating her parental

rights. 1 We affirm.

The Arkansas Department of Human Services (DHS) exercised emergency custody

over then two-month-old D.W. on September 22, 2015, upon notice of domestic

violence that occurred in the home. On September 19, 2015, police officers responded to

a call, where they discovered that Wallace had broken her apartment window to get

someone’s attention because D.W.’s father had slapped her while she was holding D.W.

The officers noted numerous drugs and paraphernalia around the apartment and

1
D.W.’s father’s parental rights were also terminated as part of the order, but he did not
appeal.
Cite as 2017 Ark. App. 376

confiscated needles and spoons with drug residue. Wallace stated that she had a history

with heroin, but she claimed that she was not using drugs at that time. A drug test

revealed otherwise when she tested positive for amphetamine, methamphetamine,

benzodiazepine, and THC. D.W. was removed from Wallace’s custody due to her

inability to supervise, protect, and care for D.W. given Wallace’s substance abuse.

On November 17, 2015, D.W. was adjudicated dependent-neglected based on the

finding that D.W.’s parents subjected him to neglect and parental unfitness. The circuit

court also found that the child had been subjected to “aggravated circumstances” as

defined in the Arkansas Juvenile Code because it was unlikely that services to the family

would result in successful reunification within a reasonable period of time.

Seven months into the case, DHS filed its petition to terminate parental rights on

April 22, 2016, and the goal of the case was changed to adoption. In June 2016, Wallace

hired private counsel who sought a continuance of the termination hearing. As a result,

the circuit court converted that hearing to a second permanency-planning hearing and

took testimony. The circuit court then set the case for a termination hearing, and DHS

filed an amended petition for termination of parental rights. The petition alleged three

statutory grounds against Wallace—twelve months out of the home of the custodial

parent, subsequent factors, and aggravated circumstances—and that the termination was in

D.W.’s best interest. The circuit court held a termination hearing on September 30, 2016.

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Cite as 2017 Ark. App. 376

At the hearing, Wallace’s continued drug-abuse and her mental-health issues 2 were

the primary focus. Wallace testified that she had not completed inpatient substance-abuse

treatment or followed the recommendation in the psychological evaluation. She admitted

that she had not maintained a stable home as she had lived in five different locations over

the course of the case. She confessed that the last time she used methamphetamine and

marijuana was as recently as June 2, 2016. She passed a drug test five days later, but

admitted it was because she had drunk a large amount of green tea to overcome the drug

test. She explained that she had attempted rehab three times for substance abuse but had

not yet completed a program. Wallace testified that, at the time of the hearing, she was

stable on her medications. She stated that she suffers from memory loss due to a previous

drug overdose. She recently moved to Rison, Arkansas, to be closer to her nephew.

Dr. George DeRoeck, clinical psychologist, testified as an expert witness. He had

performed a psychological evaluation on Wallace. At the time of the evaluation, Wallace

indicated to Dr. DeRoeck that she was not stable in her moods and that “they were out of

control;” she also admitted to drug use. Dr. DeRoeck identified Wallace as having a

“dual-diagnosis issue” composed of bipolar disorder and substance abuse. He explained

that some drug-treatment programs insist that the patient not be on medication when they

are in treatment; he said “If she was on medication and stable and still failed the substance-

abuse treatment, that would indicate that we’re looking at possibly that she may not be

able to independently parent at all.” He said an individual needs to be on a therapeutic

dose of the medication that he or she can tolerate. However, he had not evaluated her
2
Wallace was diagnosed with bipolar disorder, obsessive-compulsive disorder, and
psychosis.

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Cite as 2017 Ark. App. 376

since January 2016, so he was unaware if she was stable on her medications at the time.

Arkansas Cares, the first treatment facility Wallace attended, is a dual-diagnosis facility, but

she was asked to leave, and Dr. DeRoeck was not sure if Wallace had been provided the

dual-purpose treatment. He also explained drug use could render her medications

ineffective. According to his testimony, her mental illness is a chronic condition that will

be with her for the rest of her life. He explained that, given that she is on disability for her

mental diagnosis, she would likely have difficulty responding effectively to any future

treatment.

Harrison Williams, Wallace’s social worker, discussed conducting three months of

therapy with her. He explained that he thought Wallace had the ability to raise her child,

but she had to demonstrate that she was done with drugs and alcohol, which she had failed

to do. He illustrated this point when he testified that she was supposed to graduate from

Recovery Centers of Arkansas, a drug-rehab facility, but relapsed the night before her

graduation from the program.

Willie Baker, Wallace’s assigned caseworker, further testified to the three failed

attempts at drug treatment. He explained that as recently as August 2016, Wallace could

not pass a drug test, and that while drug tests go back ninety days and could have

overlapped with the previous drug test, the August test indicated a new drug—cocaine—

that did not show up on the previous test. Wallace never got a sponsor even though she

was asked to do so, and he could not foresee any services that could have been offered that

had not been offered that might have reunited the child with her. He testified that an

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Cite as 2017 Ark. App. 376

intensive parenting class would not help her because she continued to use drugs and to be

unstable.

The circuit court terminated Wallace’s parental rights, finding that doing so was in

D.W.’s best interest. In its written order, the court specifically found that

[the mother] has a long history of mental health issues which will be with her for
the rest of her life. The mother has not rid herself of her drug problem. The court
continues to find that the mother is not credible and that she intentionally
misrepresents material facts concerning her situation. The mother admitted that she
drank green tea in order to avoid having a positive drug screen. The mother has
made no material progress in this case and remains an unfit to [sic] parent this child.
. . . Giving the [mother] 90 more days would not make a significance [sic]
difference, nor would giving [her] six months. The mother lacks credibility. The
court accepts that perhaps she has some memory problems, but allowing for
memory problems, the mother still is not credible.

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

Human Servs., 2015 Ark. App. 131, at 4–5, 456 S.W.3d 383, 386. It is DHS’s burden to

prove by clear and convincing evidence that it is in a child’s best interest to terminate

parental rights as well as the existence of at least one statutory ground for termination. Id.

On appeal, the 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 appellate court, on the

entire evidence, is left with a definite and firm conviction that a mistake has been made.

Id. We give a high degree of deference to the circuit court, as it is in a far superior

position to observe the parties before it and judge the credibility of the witnesses. Id.

The termination-of-parental-rights analysis is twofold; it requires the circuit court

to find that the parent is unfit and that termination is in the best interest of the child. The

first step requires proof of one or more of the nine enumerated statutory grounds for

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termination. Ark. Code Ann. § 9-27-341(b)(3)(B) (Repl. 2015). The best-interest

determination must consider the likelihood that the children will be adopted and the

potential harm caused by returning custody of the children to the parent. Ark. Code Ann.

§ 9-27-341(b)(3)(A). The court, however, does not have to determine that every factor

considered be established by clear and convincing evidence. Spencer v. Ark. Dep’t of Human

Servs., 2013 Ark. App. 96, at 5–6, 426 S.W.3d 494, 498. Instead, after considering all the

factors, the evidence must be clear and convincing that the termination is in the best

interest of the child. Id.

Because Wallace has not challenged the court’s decision as to the grounds

for termination, we need not address those findings. Rather, the only issue before this

court is whether there was sufficient evidence that termination was in D.W.’s best interest.

Wallace asserts that the circuit court based its decision to terminate, in large part, on its

determination that she would never achieve minimum stability to properly parent because

of her mental illness. She seeks reversal of the termination order to be given additional

time to demonstrate that therapeutic levels of medication would allow her to parent

independently.

In determining the best interest of the children, the court considers factors such as

the likelihood of adoption and the potential harm to the health and safety of the child if

subjected to continuing contact with the parent. Ark. Code Ann. § 9-27-341(b)(3)(A)(i),

(ii) (Repl. 2015). The harm referred to in the statute is “potential” harm; the circuit court

is not required to find that actual harm will result or to affirmatively identify a potential

harm. Chaffin v. Ark. Dep’t of Human Servs., 2015 Ark. App. 522, at 5, 471 S.W.3d 251,

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255. Moreover, evidence on this factor must be viewed in a forward-looking manner and

considered in broad terms. Id. In determining potential harm, the court may consider past

behavior as a predictor of potential harm that may likely result if the child were returned

to the parent’s care and custody. Dowdy v. Ark. Dep’t of Human Servs., 2009 Ark. App.

180, at 13, 314 S.W.3d 722, 729.

Here, Wallace does not challenge the finding that D.W. is adoptable, nor does she

dispute that potential harm existed. Instead, Wallace argues that she was not provided with

appropriate services to address her mental-health issues and that she needs more time to

reach a point at which she will be stable enough to parent her child. However, as the

circuit court noted, “[T]here remains a substantial question as to whether she has the

motivation to quit using drugs.” Considering her past behavior, allowing Wallace more

time would likely not be beneficial. At the time of the termination hearing, Wallace’s

situation had barely changed. She exhibited a lack of initiative in complying with the case

plan because she never obtained a sponsor, she tested positive for cocaine a month prior to

the hearing, and she candidly admitted drinking green tea in an effort to defeat drug

screens. Notably, throughout the case, Wallace failed to appeal from any of the circuit

court’s previous reasonable-efforts findings. Her lack of progress does not warrant

additional time for improvement.

The intent of our termination statute is to provide permanency in minor children’s

lives in circumstances where returning the children to the family home is contrary to their

health, safety, or welfare, and where the evidence demonstrates that the return cannot be

accomplished in a reasonable period of time as viewed from the children’s perspective.

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Chaffin, 2015 Ark. App. at 7, 471 S.W.3d at 256. The child’s need for permanency and

stability may override the parent’s request for additional time to improve the parent’s

circumstances. Id. Parental rights will not be enforced to the detriment of the health and

well-being of the child. Christian-Holderfield v. Ark. Dep’t of Human Servs., 2011 Ark. App.

534, at 7–8, 378 S.W.3d 916, 920.

This court is sympathetic to mental illness and the challenges of receiving the

proper drug treatment at a dual-diagnosis facility, but in this case, we cannot say more

time would have been beneficial and that a mistake has been made by the circuit court.

D.W. has been in foster care for twelve of his fifteen months of life; his need for

permanency overrides Wallace’s need for more time.

Affirmed.

VIRDEN and WHITEAKER, JJ., agree.

Leah Lanford, Arkansas Public Defender Commission, for appellant.

Andrew Firth, Office of Chief Counsel, for appellee.

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

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