Secia Salinas v. Arkansas Department of Human Services and Minor Children

Cite as 2020 Ark. App. 279
Reason: I attest to the
accuracy and integrity of this
ARKANSAS COURT OF APPEALS
document
Date: 2021-07-06 14:35:34
Foxit PhantomPDF Version: DIVISION II
9.7.5
No. CV-19-890

SECIA SALINAS Opinion Delivered: April 29, 2020
APPELLANT
APPEAL FROM THE WASHINGTON
V. COUNTY CIRCUIT COURT
[NO. 72JV-18-872]

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

KENNETH S. HIXSON, Judge

Appellant Secia Salinas appeals after the Washington County Circuit Court filed an

order terminating her parental rights to her twin daughters, C.N. and S.N.2 (DOB 10-12-

2018) in case 72JV-18-872.1 Appellant argues on appeal that (1) the Arkansas Department

of Human Services (DHS) failed to plead any grounds for termination against her in its

petition and (2) DHS failed to present sufficient evidence to support the grounds for

termination. We affirm.2

1
The circuit court additionally terminated the parental rights of Samuel Nino, the
children’s father, after he filed a written consent to the termination; however, he is not a
party to this appeal.
2
This is a companion case to the appeal in Salinas v. Arkansas Department of Human
Services, 2020 Ark. App. 272, 599 S.W.3d 728, which we also hand down today. Case
72JV-18-438 involved the termination of appellant’s parental rights to four of her other
older children (A.F., M.S.1, M.S.2, and S.N.1). S.N.1 is a sibling of C.N. and S.N.2, and
A.F., M.S.1 and M.S.2 are half siblings of C.N. and S.N.2. C.N. and S.N.2 were not living
with appellant when the other four children were removed, and the circuit court conducted
I. Relevant Facts

On October 23, 2018, DHS filed a petition for ex parte emergency custody and

dependency-neglect of C.N. and S.N.2. In the affidavit attached to the petition, DHS stated

that a seventy-two-hour hold was exercised over the children after their birth and before

they were discharged from Washington Regional Medical Center. The affidavit outlines

the long history that DHS had with this family. The children’s father, Samuel Nino, and

appellant have had a tumultuous relationship in which there were times of domestic abuse

related to Nino’s excessive alcohol consumption. DHS noted that appellant had failed on

other occasions to properly supervise her older children and seemed to be unaware of the

necessity or importance of proper supervision. A few days before C.N. and S.N.2’s birth,

a caseworker visited the parental home as part of the continued monitoring in the

companion case and observed that the home was even more disorganized and dirty since

the caseworker’s previous visit on Labor Day. There was not a clean place to sit on the

kitchen table; there was cat feces on the kitchen counter; there was cat feces and cat litter

spread on the walkway to the living room; there was dirty laundry piled in the bathroom

and laundry room; there was caked-on dirt in the bathroom on the counters and toilet; and

the trash was overflowing with beer cans. Appellant reported that Nino had increased his

drinking since Labor Day despite being court ordered not to drink. Thus, C.N. and S.N.2

were subsequently removed from the physical and legal custody of their mother prior to

C.N. and S.N.2’s dependency-neglect case in a separate docket, case no. 72JV-18-872.
However, the circuit court heard evidence in support of both termination petitions in the
two dockets on August 1, 2019.
2
their discharge from the hospital “because the circumstances or conditions of CAREGIVER

present an immediate danger to the health or physical well-being of the juveniles.”

The circuit court granted the petition, finding that probable cause existed for the

removal, and a probable-cause order was filed on October 24, 2018. Appellant was ordered

to cooperate with DHS; attend a case-plan staffing; refrain from using illegal drugs or

alcohol; submit to random drug screens as requested by DHS; obtain and maintain stable

housing and employment; maintain a clean, safe home for herself and the children;

demonstrate an ability to protect the children and keep them safe from harm; and follow

the case plan and court orders. An adjudication order was filed on December 12, 2018,

finding C.N. and S.N.2 to be dependent-neglected as a result of parental unfitness. It further

determined that the allegations in the petition and affidavit were true and correct:

Specifically, we cannot say that the children were exposed to domestic violence,
however, the law does not require that the children be injured. The Department
has proven that the children are at a substantial risk of harm. The court finds that
the children are at substantial risk of harm due to Mother and Father’s domestic
violence past, the choices that the parents have made in the companion foster care
case, and there are TRUE findings for: sexual abuse (April 2017); threat of harm
(January 2017); inadequate supervision; failure to protect (December 2017); striking
a child and cuts welts and bruises (May 2018). To return the children to mother or
father would place them at a substantial risk of harm.

(Emphasis in original.) The goal of the case was set to reunification with the parents.

A permanency-planning hearing was held on April 24, 2019. It was at this hearing

that the circuit court changed the goal to adoption. In the permanency-planning order, the

circuit court noted that Nino had executed his consent to the termination of his parental

rights and that he waived his right to counsel at the termination hearing. Regarding

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appellant’s compliance with court orders and the case plan, the circuit court made the

following findings:

Mother has done the following: obtain stable housing; parenting classes; individual
counseling; supervised visitation; maintained stable employment. Mother has NOT
done the following: and has not demonstrated the ability to protect the children and
keep them safe from harm and abuse (The most important area)! The testimony is
irrefutable that mother is addressing co-dependency issues and still reaches out to
Samuel Nino for assistance. The Court finds that the root cause has not been
addressed by Mother.

(Emphasis in original.) Thereafter, DHS filed a petition for the termination of parental

rights on June 25, 2019, specifically alleging that appellant and Nino’s parental rights should

be terminated based on the statutory grounds of consent, aggravated circumstances, and

subsequent factors. See Ark. Code Ann. § 9-27-341(b)(3) (Supp. 2019).

At the termination hearing, the circuit court first heard evidence regarding the four

other children in the companion case––72JV-18-438. The parties then agreed that all

evidence and testimony from that hearing was incorporated into the termination hearing

and record regarding C.N. and S.N.2 in case 72JV-18-872.3 The circuit court additionally

heard supplemental testimony from Percilla Cothren, the family-service worker assigned to

the case. Ms. Cothren opined that C.N. and S.N.2 were adoptable because neither child

had any special medical needs or behavioral issues that might inhibit adoption. After hearing

further oral argument by the parties, the circuit court orally ruled from the bench that it was

granting DHS’s petition for termination of parental rights.

3
We do not repeat that evidence and testimony in this opinion; however, a summary
of that evidence and testimony is contained in Salinas, 2020 Ark. App. 272, 599 S.W.3d
728.
4
The circuit court filed a written order terminating appellant’s parental rights on

August 30, 2019. The circuit court specifically found by clear and convincing evidence that

it is in the best interests of the children to terminate appellant’s parental rights. It quoted

from the grounds alleged in the termination petition and stated that it was granting DHS’s

petition as pled. It further stated that it considered Ms. Cothren’s testimony that the children

were adoptable and the potential harm to the health and safety of the children if returned

to appellant’s custody. Regarding the potential harm, the circuit court made the following

findings:

The parents have demonstrated an unwillingness to make meaningful and
measurable progress towards reunification and have not demonstrated an ability to
protect the children from harm, particularly the type of harm that initially brought
the children into care. The Court has no doubt that, if returned, the children would
be in immediate danger. The mother has a home now, and the Court notes that it
is clean, however, it is not safe because the mother lives there! The mother has
repeatedly demonstrated that she cannot adequately supervise her children and ensure
that they are not sexually abused. The mother has further demonstrated that she is
incapable of tending to the severe mental health needs of her children, as indicated
by the mother bringing up inappropriate conversations involving sexual abuse during
supervised visits with [M.S.1] and [M.S.2]. The testimony today is that [M.S.1], a
sibling of the herein juveniles, suffers from disruptive mood disorders, pica, among
other disorders, and is worried that siblings will be sexually abused. The mother
stated today that she does not want her children to be bounced around in foster care,
however, the Court notes that the mother had to be specifically ordered in her prior
FINS case to not have other people around her children, yet she blatantly disregarded
those orders. Given the facts and the history of the situation, the Court finds by clear
and convincing evidence that the potential harm in returning the children to their
mother is far too great. With respect to Samuel Nino, the Court cannot place the
children with him, as he has executed a consent to terminate parental rights and is
totally unfit.

This appeal followed.

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II. Standard of Review

A circuit 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). 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. Posey v. Ark. Dep’t of Health &

Human Servs., 370 Ark. 500, 262 S.W.3d 159 (2007). On appeal, the appellate court reviews

termination-of-parental-rights cases de novo but will not reverse the circuit 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

circuit court to judge the credibility of witnesses. Id.

In order to terminate parental rights, a circuit court must find by clear and convincing

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

the likelihood that the juvenile 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. Ark. Code Ann. § 9-27-

341(b)(3)(A)(i) & (ii). The order terminating parental rights must also 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). However, only one ground must be proved to support

termination. Reid v. Ark. Dep’t of Human Servs., 2011 Ark. 187, 380 S.W.3d 918.

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The intent behind the termination-of-parental rights statute is to provide

permanency in a child’s life when it is not possible to return the child to the family home

because it is contrary to the child’s health, safety, or welfare, and a return to the family home

cannot be accomplished in a reasonable period of time as viewed from the child’s

perspective. Ark. Code Ann. § 9-27-341(a)(3). Even full compliance with the case plan is

not determinative; the issue is whether the parent has become a stable, safe parent able to

care for his or her child. Cobb v. Ark. Dep’t of Human Servs., 2017 Ark. App. 85, 512 S.W.3d

694. Moreover, a child’s need for permanency and stability may override a parent’s request

for additional time to improve the parent’s circumstances. Id. Finally, a parent’s past

behavior is often a good indicator of future behavior. Id.

III. Grounds Alleged in the Petition

Appellant first argues that the circuit court erred in terminating her parental rights

because DHS failed to plead any grounds in the petition for termination against her. Citing

Jackson v. Arkansas Department of Human Services, 2013 Ark. App. 411, 429 S.W.3d 276, she

argues that her termination was based on a ground not pled in the petition and must be

reversed. In Jackson, the ground regarding failure to maintain meaningful contact was not

alleged in the petition and was not argued by DHS at the hearing. Furthermore, the circuit

court took the matter under advisement and did not make a ruling from the bench. The

first time this ground was ever specifically mentioned as a ground for termination was in the

circuit court’s order terminating Jackson’s parental rights. We held that

[b]ecause Jackson was never specifically informed that this ground was being asserted
against him, Jackson was denied the opportunity to fully develop a defense to this
ground or to adequately address this ground during closing arguments. Thus, the
trial court’s reliance on this ground to support termination was clearly erroneous.
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Due process dictates that Jackson be afforded an opportunity to properly defend the
allegations against him prior to terminating his parental rights.

Jackson, 2013 Ark. App. 411, at 7, 429 S.W.3d at 280. Here, appellant argues that the

grounds included in the petition were alleged against only Samuel Nino and that there were

no facts pled by DHS to apprise her that any grounds existed on which her rights could be

terminated. DHS argues that the subsequent-factors and aggravated-circumstances grounds

were pled against appellant and that she nevertheless failed to preserve her argument. We

agree.

The petition in this case sought to terminate the rights of both appellant and Nino,

and specifically stated the following:

4. The Department is seeking the termination of Secia Salinas’s and
Samuel Nino’s parental rights as to the following juveniles: [C.N.], date of birth:
October 12, 2018; [S.N.2], date of birth: October 12, 2018.

....

7. The grounds for the termination of parental rights and the
Department’s authority to consent to adoption and permanent alternate placement
of the juvenile without parental consent or notice, include:

(1) That it is in the best interest of the juveniles, including consideration of
the following factors:

A. The likelihood that the juveniles will be adopted if the
termination petition is granted, and

B. The potential harm, specifically addressing the effect on the
health and safety of the children, caused by returning the
children to the custody of the parents.

C. And one or more of the following grounds:

As to Samuel Nino:

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1) A parent has executed consent to termination of parental rights
or adoption of the juveniles, subject to the court’s approval. A.C.A.
§ 9-27-341(b)(3)(B)(v)(a).

Specifically, on December 12, 2018, Samuel Nino executed and
caused to be filed a “Consent to Termination of Parental Rights Waiver of
Notice and Entry of Appearance.” Samuel Nino did not revoke his consent,
and the time to revoke that consent has since lapsed.

2) The parent is found by a Court of competent jurisdiction,
including the Juvenile Division of the Court to:

Have subjected any juvenile to aggravated circumstances.
“Aggravated circumstances” means:

A juvenile has been abandoned, chronically abused,
subjected to extreme or repeated cruelty, sexually
abused, or a determination has been or is made by a
judge that there is little likelihood that services to the
family will result in successful reunification. A.C.A. §
9-27-341(b)(3)(B)(ix)(a).

....

It is axiomatic that the most important question is whether completion
of the case plan achieved the intended result of making the parent capable of
caring for the child. While the mother has participated in family services
throughout this case, however, she has consistently shown throughout this
case, and in past protective services cases, that she is incapable of keeping her
children safe and ensuring that their mental health needs are addressed.
Further, given the mother’s history with the Department, demonstrates that
there is little likelihood that family services will result in successful
reunification. The mother continues to be in a tumultuous relationship with
Samuel Nino after he failed to comply with the case plan and court orders,
and voluntarily relinquished his parental rights as to his children. This further
underscores the fact that there is little likelihood that continued services to the
family would result in reunification.

3) That other factors or issues arose subsequent to the filing of the
original petition for dependency-neglect that demonstrate that
placement of the juveniles in the custody of the parent 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
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or rehabilitate the parent’s circumstances that prevent placement of
the juvenile in the custody of the parents.

The original petition for Emergency Custody and Dependency-
Neglect was filed in this case on October 23, 2018. Since that filing, the
Court has found that the parents have failed to comply with the case plan and
court orders that were intended to assist with the reunification of the family.

Specifically, the mother has not complied with all of the court orders
and the case plan. Specifically, the mother has failed to demonstrate that she
can keep her children safe, as she continues to make poor choices that are
detrimental to her children’s well-being, namely continuing to have contact
with Samuel Nino.

At the permanency planning hearing the Court found that the children
cannot be safely returned to Mother because she has failed to make genuine,
sustainable, and measurable progress towards alleviating or mitigating the
causes of the juveniles’ removal from the home. The Court specifically noted
that the children have gone through extensive trauma, and that mother is
unable to demonstrate that she can properly care for them. The Court also
noted that the mother continues to have a relationship with Samuel Nino, and
that she still reaches out to him for assistance, as the mother testified that she
had recent contact with him.

It is worth noting that Samuel Nino has been in noncompliance with
the case plan and court orders throughout this case, and, as a result, executed
a consent to terminate his parental rights as to [S.N.1] and her siblings in a
separate case. The mother has chosen to continue her relationship with a man
that has serious unaddressed alcohol dependency demonstrating that she
continues to make poor choices for her children, and that she lacks the
capacity to keep them safe.

Even full compliance of a case plan is not determinative, as what
matters most is whether completion of the case pan achieved the intended
result of making the parent capable of caring for the child. See Cole v. Ark.
Dep’t of Human Servs., 2012 Ark. App. 203 (2012). While the mother has
“checked-off the boxes,” she continues to make choices that inhibit her ability
to safely parent her children.

....

Despite a meaningful effort by the Department to rehabilitate the
parents and correct the conditions which caused removal . . . the parents have

10
failed to remedy the conditions that caused their children to come into foster
care.

The Court found that the Department has been in compliance and has
made reasonable efforts towards the goal of reunification.

(Emphasis added and some from original.) We acknowledge appellant’s argument that in

paragraph 7 of the petition for termination, DHS included a subheading “As to Samuel

Nino” and did not include another subheading for the appellant. However, in reviewing

the allegations in paragraph 7, the petition includes eleven separate allegations against the

appellant. Even though the petition failed to specifically include a subheading stating

appellant’s name above the second and third grounds alleged, it is clear from the context

that DHS was alleging that the subsequent-factors and aggravated-circumstances grounds

applied to appellant. Thus, despite her assertions to the contrary, appellant was sufficiently

placed on notice that she must defend on those particular grounds.

Moreover, unlike in Jackson, here, DHS specifically argued at the termination hearing

that the grounds it pled in the petition were sufficiently proven. Additionally, at the

conclusion of the hearing, the circuit court did not take the matter under advisement but

instead ruled from the bench that it was terminating appellant’s parental rights on the

aggravated-circumstances and subsequent-factors grounds. Appellant did not object or

make any argument regarding DHS and the circuit court’s reliance on these grounds either

during the discussion regarding which grounds were pled or upon the circuit court’s ruling.

We have held that permitting the introduction of proof on an issue not raised in the

pleadings constitutes an implied consent to trial on that issue. Mitjans v. Ark. Dep’t of Human

Servs., 2018 Ark. App. 472, 561 S.W.3d 747. As in Mitjans, appellant never raised an

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argument below about lack of notice or failure to properly plead grounds. Even in

termination cases, we will not address arguments raised for the first time on appeal. Id. Any

argument regarding a lack of factual specificity in the petition to terminate parental rights is

also precluded by the failure to object below. Id.

IV. Termination

Next, we do not agree with appellant’s contention that the evidence was insufficient

to support the finding that statutory grounds existed in order to terminate her parental rights.

Although the circuit court found two statutory grounds for termination, only one ground

is necessary to support the termination. See Reid, supra. The circuit court found by clear

and convincing evidence that DHS proved the aggravated-circumstances ground. Arkansas

Code Annotated section 9-27-341(b)(3)(B)(ix)(a) lists as a ground for removal when

(ix)(a) The parent is found by a court of competent jurisdiction, including the
juvenile division of circuit court, to:

....

(3)(A) Have subjected any juvenile to aggravated circumstances.

(B) “Aggravated circumstances” means:

(i) A juvenile has been abandoned, chronically abused, subjected to extreme or
repeated cruelty, sexually abused, or a determination has been or is made by a judge
that there is little likelihood that services to the family will result in successful
reunification;

Appellant specifically argues on appeal that the circuit court’s findings regarding aggravated

circumstances was based purely on speculation and must be reversed. We disagree.

At the termination hearing, Ms. Cothren testified that appellant had never been able

to achieve consistent visits with the three older children. While appellant did not maintain

12
weekly contact with DHS and did not have stable employment, she did participate in

counseling, submit to drug screens, complete parenting classes, and obtain stable housing.

However, Ms. Cothren did not believe appellant had demonstrated an ability to keep her

children safe from harm and cited appellant’s continued association with Nino even after he

relinquished his parental rights. Ms. Cothren also noted that DHS had been providing

services to appellant since 2016 “all with no result.” Despite receiving services from DHS

since 2016, appellant never reached a point where she could be trusted with unsupervised

visitation or a trial placement.

Appellant testified that she had just started a food-service job at a hospital the day

before the termination hearing. She admitted she had not been consistent in maintaining

contact with DHS because she “felt it was pointless.” She stated, “[I]f it were up to me, I

would take my three oldest [A.F., M.S.1, and M.S.2] home, and let the [name retracted]

family adopt the three youngest [S.N.1, C.N., and S.N.2].” Despite Nino’s signing a

consent to the termination of his parental rights and his previous history of domestic abuse,

appellant admitted being in contact with Nino at least twice in the four months prior to the

termination hearing. She claimed that a previous domestic-violence incident was “isolated,”

that she had felt safe in calling Nino for a ride, and that he had called her for a ride “within

the last month.” Although she claimed she would not let Nino around the children, the

court questioned this statement, asking “If you’ve had contact with him after he signed the

consent, how could the Court be trusting of your word today?” Based on the evidence

presented, we hold that the circuit court’s finding that there was little likelihood that services

would result in successful reunification was not clearly erroneous. Because we conclude

13
that DHS adequately proved the aggravated-circumstances ground, we need not discuss the

remaining ground found by the circuit court. See Kohlman v. Ark. Dep’t of Human Servs.,

2018 Ark. App. 164, 544 S.W.3d 595. Accordingly, we affirm the order terminating

appellant’s parental rights.

Affirmed.

GRUBER, C.J., and SWITZER, J., agree.

Tabitha McNulty, Arkansas Commission for Parent Counsel, for appellant.

Andrew Firth, Office of Chief Counsel, for appellee.

Kimberly Boling Bibb, attorney ad litem for minor children.

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