Ildifonso Garza and Shana Hembrey v. Arkansas Department of Human Services and Minor Child

Cite as 2024 Ark. App. 276
ARKANSAS COURT OF APPEALS
DIVISION IV
No. CV-23-846

ILDIFONSO GARZA AND SHANA Opinion Delivered April 24, 2024

HEMBREY
APPEAL FROM THE JACKSON
APPELLANTS
COUNTY CIRCUIT COURT
[NO. 34JV-21-131]
V.
HONORABLE ADAM G. WEEKS,
ARKANSAS DEPARTMENT OF JUDGE
HUMAN SERVICES AND MINOR
CHILD AFFIRMED
APPELLEES

CINDY GRACE THYER, Judge

Ildifonso Garza and Shana Hembrey each separately appeal the Jackson County

Circuit Court’s order terminating their parental rights to their daughter, MC. Neither party

challenges the statutory grounds for the termination; instead, they both argue that the circuit

court erred in finding that termination was in MC’s best interest. We affirm.

On October 2, 2021, the Arkansas Department of Human Services (DHS) received a

Garrett’s Law report that MC had tested positive for amphetamine at birth. When

questioned by the family service worker, Hembrey admitted using methamphetamine the

weekend prior, and her drug screen came back positive for methamphetamine and opioids.

Garza was present at the hospital but refused to submit to a drug screen. Hembrey informed

DHS that she did not want Garza involved and did not intend to place his name on the birth
certificate. Garza then left the hospital. As a result of their investigation, DHS placed a

seventy-two-hour hold on MC.

On October 6, DHS attempted to contact Hembrey to assess her home. When DHS

family service workers (FSWs) arrived at the address Hembrey had provided at removal, they

were told that Hembrey did not live at that address but lived with her grandparents. When

the workers went to the grandparents’ home, they found it to be clean and tidy except for

Hembrey’s room, which was in disarray. The only baby item in the home was a highchair.

There was no crib, bassinet, or clothing present. Hembrey was not present during the visit

but agreed to travel to the DHS office for a meeting later that day. While there, she submitted

to another drug screen, which revealed she was positive for methamphetamine,

amphetamine, and opioids. She then admitted using controlled substances upon her release

from the hospital. As a result, DHS exercised another seventy-two-hour hold on the child.1

On October 7, DHS filed a petition for emergency custody and dependency-neglect

naming Hembrey as a parent and identifying Garza as a putative parent. The affidavit in

support of the petition set out the foregoing facts and stated that removal was necessary

because Hembrey’s substance abuse seriously affected her ability to supervise, protect, or care

for the child. The ex parte order for emergency custody was granted that same day.

In an October 13 order, the circuit court found that probable cause existed and

continued to exist and that it was in the best interest of MC to remain in DHS custody. The

1
This second seventy-two-hour hold was necessitated by DHS’s failure to submit a
timely ex parte order for emergency custody when the child was first removed.

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court further found that DHS had been involved with the family since December 2010 but

that the services had not prevented removal because Hembrey had given birth to MC, who

tested positive for methamphetamine. Hembrey attended the probable-cause hearing; Garza

did not.

In a December 2 order, the circuit court adjudicated MC dependent-neglected due to

parental unfitness caused by Hembrey’s drug usage. Garza failed to appear at the hearing,

and the circuit court ultimately dismissed him from the action, finding that he had not

established significant contacts with MC and that his rights as a putative parent had not

attached. The court set a goal of reunification and ordered Hembrey to comply with the

approved case plan.

In January 2022, Hembrey, who had been placed on probation for crimes committed

in July 2019,2 had her probation revoked. Upon revocation, she was sentenced to a total of

thirty-six years in the Arkansas Department of Correction.

In March and August 2022, the circuit court entered review orders continuing the

goal of reunification and finding that safety concerns prevented a trial placement with, or

return of custody to, Hembrey because of her continued incarceration.

A permanency-planning hearing was held on November 1, 2022. After the hearing,

the court changed the goal of the case to adoption. The court found that Hembrey had not

2
Hembrey was on probation for two counts of financial identity fraud and one count
of theft of property (credit/debit card). She received fifteen years on each of the fraud counts
and six years on the theft count, to run consecutively.

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complied with the case plan and orders of the court; had not demonstrated progress towards

the goal of the case plan; and was not working to remedy the issues that prevent the safe

return of the juvenile. Specifically, the court noted that Hembrey remained incarcerated.

Shortly thereafter, on November 14, 2022, DHS filed a petition for termination of

parental rights asserting multiple statutory grounds against Hembrey—twelve-month failure

to remedy, subsequent other factors, aggravated circumstances, and incarceration.

On April 14, 2023, Garza signed an acknowledgment of paternity. On the same date,

stating its intent to file an updated petition, DHS moved to dismiss its termination petition,

which the court granted. Subsequently, Garza was recognized as a parent, was again added

as a party, and was appointed counsel.

On June 26, 2023, DHS filed another petition to terminate parental rights. As to

Hembrey, the petition again alleged twelve-month-failure-to-remedy, subsequent-other-

factors, aggravated-circumstances, and incarceration grounds. As to Garza, it alleged the

following grounds to support termination: noncustodial parent twelve-month failure to

remedy, twelve-month failure to provide significant material support or maintain meaningful

contact, subsequent other factors, aggravated circumstances, abandonment, and

incarceration.

A termination hearing took place on September 26. Garza and Hembrey testified, as

did Natalie Hohn (the FSW), April Stokes (the FSW supervisor), and Hannah Briggs (the

foster parent).

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Garza testified that he believed MC to be his daughter, that he was present at the

hospital when she was born, and that he was aware that she was placed in foster care shortly

after birth. He admitted that he had refused the drug screen requested by DHS at the hospital

but claimed he would have tested negative for illegal substances. He stated that he waited

almost a year and a half to contact DHS because DHS told him it could not help him and

that he would need a lawyer. He further explained that his father had died, and because he

was absconding, he was afraid he would go to prison. He further admitted that his probation

had been revoked and that he was serving a five-year sentence he had received for credit-card

fraud. However, he claimed that he would not serve the entire five-year sentence and was set

to be released on December 12.3 He also admitted that at the time of his arrest, he was found

in possession of methamphetamine and was convicted of that charge as well.

Garza then testified that he had engaged in Zoom visits with MC after he had signed

the acknowledgement of paternity and that they had gone pretty well. However, he had not

had any face-to-face contact with MC for almost eleven months. 4 When asked, he admitted

he had not paid any child support for MC but asserted that the court had never ordered him

to pay any support for her either. He further noted that he had been paying child support

for his other two children who lived with their mother. He stated he had taken parenting,

3
He claimed his release date was set because he had been sentenced to judicial transfer
to ACC.
4
He testified that he saw MC five or six times during the time MC was placed with
Hembrey’s sister.

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fatherhood, and money-management classes and intended to get his GED. He also claimed

to own a home—the one in which he was arrested and found with methamphetamine—but

acknowledged it was not suitable for MC.

As for his plans to parent MC, he stated he hoped to leave the county, get another

house, and get a job at the steel mill in Osceola when he was released from prison. He

believed he would be able to achieve his goals within three or four months after his release.

Even though MC had spent her entire two years of life in foster care, he denied abandoning

her and asked for more time and a chance to parent her.

Hembrey testified next and confirmed that she had been sentenced to thirty-six years

in prison, was presently incarcerated, and had been incarcerated since October 24, 2021.

She noted that she was four years and two months away from her release date. She claimed

that she had participated in multiple programs while in prison, including parenting classes,

and that she had enrolled in college courses in pursuit of a business degree.

As for visitation with MC, she claimed that she had been allowed Zoom visits with

her and had attended them all. She admitted that the only in-person contact with MC

occurred during the three weeks after MC’s birth and before Hembrey’s arrest. She

acknowledged that for a period of almost one year thereafter, visitation did not occur because

MC was staying with her sister, who was not on Hembrey’s approved visitor list at the jail.

Hembrey argued that she would have bonded with MC during that time if she had been

provided visitation.

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As for her substance-abuse issues, Hembrey acknowledged she has a drug problem

and had failed two drug screens but asserted that her drug issue was currently under control.

She asserted that she had received a certificate for completing a substance-use rehabilitation

class and had not had a positive drug screen for ten months. She complained that DHS had

not provided her with any services other than Zoom visitation since her incarceration.

As for MC’s care, Hembrey asked that her parental rights not be terminated and that

Garza be given the opportunity to parent MC. She explained that she had not placed Garza

on MC’s birth certificate initially because they were not on good terms at that point. She

also listed several relatives that she believed could take custody of MC. She indicated that

she did not believe it would be hard on MC to be moved from her current placement because

she was too young for lasting memories and would adjust to being home with her family.

She stated that, once she was released, she planned to leave the county, finish her degree,

and get a job elsewhere.

Natalie Hohn, the FSW assigned to the case, was the next to testify. She

recommended that parental rights be terminated so DHS could move forward with plans for

MC’s adoption. She stated that MC had been in care for the entirety of her life—almost two

years—and that MC could still not be placed with either parent due to their incarceration.

She noted that Hembrey had been sentenced to thirty-six years in prison and Garza five,

although Garza was set to be released on December 12. Because of their incarceration, the

only services DHS could provide were Zoom visits, updated case plans, and pictures. She

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testified that MC is a healthy child; she was unaware of any obstacles to her adoption; and

that it was in MC’s best interest to move forward with termination.

As for Garza, she testified that he was initially only considered a putative father and

that he had not appeared at the first two hearings. She stated that she spoke to him only

once on the telephone, on October 6, and that he was supposed to meet with her at the

office, but he did not show. She stated he had had no contact with DHS until shortly before

the acknowledgment of paternity was filed. Once he established paternity, a case plan was

developed. She stated that he was able to access parenting classes through the ADC, but they

had been unable to perform drug screens.

April Stokes, the FSW supervisor assigned to the case since its inception, testified that

she also agreed with the recommendation that Garza and Hembrey’s parental rights be

terminated and that termination was in MC’s best interest. Additionally, she testified that

she was unaware of any issues that would prolong or prevent MC from being adopted.

Stokes then testified to potential relative placements investigated by DHS. She stated

that MC was initially placed with Hembrey’s sister, Janice Williams, after removal. MC was

in that placement for almost a year but ultimately had to be removed because of reports of

Williams’s irrational behavior and drug use. Stokes stated that DHS had been provided with

nine other potential relative-placement options; that one of the potential placements was

still under review and had yet to be denied; but that there were concerns with the rest. She

then described in detail the concerns DHS had with each of the nine prospective placement

options.

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The last witness to testify at the hearing was the foster mother, Hannah Briggs. She

testified that MC is her foster daughter and had been placed in her home for over a year.

She stated that MC had bonded with and become very attached to her adopted daughter

while living there.

At the conclusion of the hearing, the circuit court terminated the parental rights of

both Hembrey and Garza. It terminated Hembrey’s parental rights on the grounds of failure

to remedy, incarceration, and aggravated circumstances—little likelihood for successful

reunification. It terminated Garza’s parental rights on the grounds of incarceration,

subsequent other factors, and aggravated circumstances—little likelihood for successful

reunification. As to both parents, it found that termination was in the MC’s best interest.

Specifically, the court found that both parents were incarcerated, and neither had a safe and

appropriate home for MC.

Both Hembrey and Garza have now appealed the circuit court’s termination of their

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

Hum. Servs., 2019 Ark. App. 255, 576 S.W.3d 86. 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) (Supp. 2023), 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

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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, Garza and Hembrey assert only that the termination of their parental

rights was not in MC’s best interest, and as to best interest, they challenge only the potential-

harm prong of the best-interest finding. 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 of Hum. Servs., 2018 Ark. App. 425, 555 S.W.3d 915. Potential

harm must be viewed in a forward-looking manner and in broad terms, but a court may

consider a parent’s past behavior as a predictor of future behavior. Id. at 12, 555 S.W.3d at

921.

As to his claim of error, Garza challenges the court’s determination that MC could

not be returned to the family home within a “reasonable period of time as viewed from the

child’s perspective.” He notes that MC is only two years old and that an additional three

months is an insignificant amount of time when compared to the next sixteen years of being

forever separated from her father. He claims that he is making progress; that he is only

months from being released from prison; that MC is currently in a stable placement; that

there is still one more relative placement being explored by DHS; and that the age of the

case is the only factor supporting termination. He argues that when a parent demonstrates

stability and a reasonable hope for reunification, there is no harm in waiting a little longer

before terminating parental rights. Because there is reasonable hope for him to be able to

parent MC, he claims the termination decision should be reversed.

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However, sufficient evidence supports the court’s best-interest finding as to Garza

because Garza has not demonstrated stability and a reasonable hope for reunification. He is

currently incarcerated, and although his potential release date was only a few months away

at the time of the hearing, he admitted he had not yet secured employment or suitable

housing upon his release. This court has affirmed a potential-harm finding based on

incarceration because the lack of stable housing and employment due to incarceration are

sufficient to prove potential harm. See, e.g., Martin v. Ark. Dep’t of Hum. Servs., 2022 Ark. App.

508, at 10, 657 S.W.3d 881, 887 (citing Brumley v. Ark. Dep’t of Hum. Servs., 2015 Ark. 356,

at 10–12). Moreover, while he allegedly visited MC five or six times prior to his incarceration

and by Zoom thereafter, there was no evidence as to what type of a bond, if any, he had with

MC. He failed to even acknowledge his paternity for more than a year after her birth because

he chose to abscond rather than fulfill his parental obligations. And while he points to the

fact that he has other children whom he supports financially, those children live with their

mother, and there is no evidence that he has any bond with those children or that MC has

forged any bonds with them. There was also evidence introduced at the hearing that he

refused a drug screen at the hospital after MC’s birth and that he was found to be in

possession of a controlled substance when he was subsequently arrested. Thus, it is unclear

the extent of his substance-abuse issues, if any.

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

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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. Schaible v. Ark. Dep’t of Hum. Servs., 2014 Ark. App. 541, at 8, 444 S.W.3d 366, 371.

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., 444 S.W.3d at 371. Simply put,

there was insufficient evidence to support Garza’s claim that he would be able to begin

parenting MC upon his release from prison, and there was sufficient evidence upon which

to support the court’s determination that termination was in her best interest.

Hembrey, in her brief, argues that termination was not appropriate because relative

placement was a less restrictive alternative to termination. She claims that DHS only paid lip

service to the search for relative placement and simply denied some of the potential relative

placements without properly determining whether those relatives would actually qualify as a

placement option. She identified three potential relative placements: Alberto Garza (Garza’s

brother); Jasmine Hernandez (Garza’s cousin); and Davina Hembrey (her stepmother).

As stated above, Stokes, the FSW supervisor, testified in detail the concerns DHS had

with the potential placement options suggested by Hembrey. She testified that that Alberto

was denied because he lived in a home that was admittedly unsuitable. Jasmine was denied

because she lived in her boyfriend’s home along with him and his mother; that her boyfriend

was the only one in the household with a valid driver’s license; and that her boyfriend had

tested positive for THC despite not having a medical marijuana prescription. Additionally,

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Jasmine indicated that if her boyfriend had known he was going to be drug tested, he would

have been prepared—in other words, he would have hidden his illegal drug use. As for

Davina, Stokes testified that she had not been forthcoming and truthful with DHS. Davina

informed DHS that she was separated from Hembrey’s father; however, her social media

posts suggested otherwise. She also told DHS that, despite their separation, she did not

intend to divorce him. This is important because Hembrey’s father was on active parole, and

it is DHS policy that persons on active parole cannot be provisional foster parents.

In order to make a least-restrictive-placement argument on appeal, at a minimum,

there must be an appropriate and approved relative in the picture. We have held that where

relatives have not been approved for placement and the children remained in foster care, the

existence of potential relatives was not a basis to reverse a termination decision. Thomas v.

Ark. Dep’t of Hum. Servs., 2020 Ark. App. 457, 610 S.W.3d 688; Dominguez v. Ark. Dep’t of

Hum. Servs., 2020 Ark. App. 2, 592 S.W.3d 723. Because there were no approved relative-

placement options available at the time of the termination hearing, and because there was

no reasonable hope for reunification within a reasonable time frame from MC’s perspective,

the court’s termination decision as to Hembrey was not in error.

Affirmed.

ABRAMSON and MURPHY, JJ., agree.

Dusti Standridge, for separate appellant Ildifonso Garza.

James & Streit, by: Jonathan R. Streit, for separate appellant Shana “Hembrey.

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

appellee.

Dana McClain, attorney ad litem for minor child.

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