|
(Cite
as: 310 WL 3565759 (Ark. Ct. App. 2010) ) |
Court
of Appeals of Arkansas.
Shanda
ALLEN, Appellant
v.
ARKANSAS
DEP'T OF HUMAN SERVICES, and Minor Child, Appellees.
No.
CA10-304.
Sept.
15, 2010.
Appeal
from the Sebastian County Circuit Court, [NO. JV-08-431]; Mark Hewett,
Judge.
WAYMOND
M. BROWN, Judge.
Shanda
Allen appeals from the termination of her parental rights to her daughter, A.
L., who was born on November 14, 2007. We affirm.
DHS
took emergency custody of A.L. on June 18, 2008, when her parents were arrested
on drug charges.FN1
The police found a drug pipe and hypodermic needles in the home and
methamphetamine on the father. Appellant was arrested for obstruction of justice
and possession of drug paraphernalia. The father's drug test was positive for
amphetamines, methamphetamine, and marijuana. The affidavit supporting DHS's
petition for emergency custody stated: ?DCFS worker observed that Shanda Allen
behaved irrationally, crying and arguing with the worker and law enforcement
agents. Worker also observed Ms. Allens [sic] having difficulty keeping her eyes
open and slurring her speech when questioned.? Appellant did not appear for the
drug test requested by DHS. The court ordered A.L. placed in DHS's custody on
June 23, 2008, and entered a probable-cause order the next month. Because the
parents raised the issue of the child's Indian heritage, the court directed that
the required notice be given to the Cherokee Nation of Oklahoma.
Appellant
did not appear at the adjudication hearing held on August 14, 2008, although her
attorney was present. Salena Whitekiller-Wynn, a child welfare specialist,
appeared on behalf of the Cherokee Nation. The court continued A.L.'s custody
with DHS; set reunification as the goal; and directed appellant to submit to
drug testing before visitation at the DHS office. The court also ordered
appellant to complete parenting classes; to maintain stable and appropriate
housing and income; to submit to a psychological evaluation and complete any
recommended counseling; to submit to a drug/
For
the second time, appellant was charged with possession of drug paraphernalia on
August 29, 2008. The criminal division of the circuit court in Sebastian County
sentenced appellant to ten years with eight years suspended. Appellant was
permitted to avoid prison by participating in drug court and submitting to
inpatient rehabilitation for her drug addiction. In December 2008, she entered
Gateway. A week later, she was given a six-hour pass to see her grandmother at
Christmas; however, she went out with friends, did drugs, and did not return to
Gateway.
Appellant
did not appear at the review hearing held on January 15, 2009. In the following
order, the court stated that the concurrent goals of the case would be
reunification and termination with adoption. It found that appellant had failed
to comply with the case plan and court orders and had made no contact with DHS.
It ruled that appellant could have no visitation until she appeared before the
court.
After
appellant was arrested in March 2009, she was incarcerated in a regional
correctional facility, where she began receiving drug rehabilitation. Appellant
appeared at the permanency-planning hearing held on May 28, 2009. In the
resulting order, the court stated:
7.
The Court finds that the mother has failed to comply with the case plan and
orders of the Court. She is presently incarcerated and therefore lacks stable,
appropriate housing, she has no income, employment or transportation, has not
completed parenting classes, has not successfully resolved her criminal charges
and has not visited the juvenile since 07/
DHS
filed a petition for termination of appellant's parental rights on July 8, 2009.
The court held a hearing on the petition on October 30, 2009, which appellant
attended with her attorney. The attorney ad litem recommended termination and
adoption. Appellant; Ms. Whitekiller-Wynn; and Ceci Cade, the case worker,
testified. Appellant testified about her progress since being incarcerated, such
as attending parenting classes; participating in the drug rehabilitation
program; attending anger-management classes; working on her GED; working a
twelve-step program; and becoming drug-free. She acknowledged the long duration
and severity of her drug addiction and expressed her regrets over her former way
of life. She stated that she anticipated being released in January 2010 to her
grandmother's home, which, she conceded, was ?totally inappropriate? for her
daughter. She was not sure, but thought that it might take an additional three
months to obtain a home, a job, and transportation. She acknowledged that her
driver's license had been suspended; that she had not followed the case plan
before she was incarcerated; and that she had not seen A.L. since July
2008.
Ms.
Whitekiller-Wynn testified that the child could be subject to potentially
serious emotional or physical harm if returned to appellant. She stated that,
even though appellant was aware of her drug problem, she was ?absolutely
incapable? of meeting A.L.'s needs. She said that it would be unfair to make
A.L. remain in DHS's custody six additional months after appellant's release and
that it would be inappropriate to risk her remaining there while appellant was
on parole and in jeopardy of being returned to prison to finish her ten-year
sentence. Ceci Cade recommended that appellant's parental rights be terminated.
She said that appellant had visited with A.L. only three times and had last seen
her in July 2008. Ms. Cade estimated that it would take appellant another six
months after her release to obtain a job and housing.
At
the conclusion of the hearing, the court stated:
The
mother has not complied with the Case Plan. She's never had stable and
appropriate housing, employment or income, her driver's license is suspended, so
she would have to get that reinstated. She's not at this point completed drug
treatment, although the Court is cognizant of the fact that she is in a
treatment program through the Department of Corrections [sic] at this time and
is working on that. She is currently taking parenting classes which will run for
the duration of the time she's incarcerated. The mother did not visit on a
regular basis, she only visited three times; has not seen the child in over a
year....
The
Court finds that there is very little likelihood that either parent could comply
with the requirements of the Court Order and Case Plan within a reasonable time
as reviewed from the child's standpoint. The mother's testimony earlier was that
she's going to be released; it will be some time in January, ... which is almost
three months. Even three months after that for the mother to get some housing
and employment, we're talking about another six months, absolute minimum. At
that time, the child would have been out of the mother's custody for twenty-four
out of thirty months. So, from looking at it from the child's viewpoint I don't
think anything could be accomplished within a reasonable time. I think there is
a substantial risk of harm that could occur to the child if returned to either
parent, and especially to the mother at this time. The mother is maintaining
sobriety at this point, but the only time she's maintained sobriety has been
when she's been incarcerated.
The
court granted DHS's motion to terminate appellant's parental rights, stating in
its order:
2.
The Court finds that the Department has proven beyond a reasonable doubt that:
it has an appropriate permanency plan for the juvenile, namely adoption; and
that it is in the best interest of the juvenile that this Petition be granted.
The Court finds that the Department made active efforts to prevent the breakup
of the Indian family. The Court finds that there has been qualified expert
testimony today from a representative of the Cherokee Nation of Oklahoma. The
Court finds that the juvenile is likely to be adopted and continued custody with
the parents would cause the juvenile serious emotional or physical
harm.
The
court also found that DHS had proven, beyond a reasonable doubt, grounds under
Arkansas Code Annotated section 9-27-341(b)(3)(B)(i)(a) (Repl.2009), because the
child had been in foster care for seventeen months and appellant had not
corrected the conditions that caused removal. The court described appellant's
noncompliant behavior throughout this proceeding:
3.
The mother was arrested at the time the juvenile was placed in foster care and
charged with Obstruction of Governmental Operations and Possession of Drug
Paraphernalia. As a result of those charges, the mother was sentenced to a 10
year ADC commitment with 8 years suspended and 2 years of drug court. She was
ordered to begin a 42 day stay in a residential drug treatment facility on
12/
Appellant
then pursued this appeal.
Appellant
contends that the trial court did not comply with the Indian Child Welfare Act
of 1978 (ICWA), codified at 25 U.S.C. sections 1901 through 1963, and that, even
if it did comply with the Act, the evidence did not support one of the court's
findings relevant to the Act. The ICWA was enacted to ?protect the best
interests of Indian children and to promote the stability and security of Indian
tribes and families.? FN2
The Act provides ?minimum Federal standards for the removal of Indian children
from their families and the placement of such children in foster or adoptive
homes which will reflect the unique values of Indian culture, and by providing
for assistance to Indian tribes in the operation of child and family service
programs.? FN3
The
ICWA provides that no termination of parental rights may be ordered in the
absence of a determination, supported by evidence beyond a reasonable doubt,
including the testimony of qualified expert witnesses, that the continued
custody of the child by the parent is likely to result in serious emotional or
physical damage to the child.FN4
The ?beyond a reasonable doubt? burden required by the ICWA is more stringent
than the one imposed by the Arkansas Code. Arkansas law requires that a
termination of parental rights be based upon a finding by clear and convincing
evidence that it is in the best interest of the juvenile, including
consideration of (i) the likelihood that the juvenile will be adopted if the
termination petition is granted; and (ii) the potential harm that returning the
child to the custody of the parent would cause, specifically addressing the
effect on the health and safety of the child. FN5
There must also be a finding by clear and convincing evidence of one or more
grounds under Arkansas Code Annotated section 9-27-341(b)(3)(B). FN6
We review termination-of-parental-rights cases de novo.FN7
We will not reverse the circuit court's finding of clear and convincing evidence
unless that finding is clearly erroneous.FN8
Arkansas has not applied the substantial-evidence standard of review in an ICWA
case, as has been done in other jurisdictions.FN9
Nor have we specified that a dual burden of proof is required in a proceeding
for termination of parental rights that involves the ICWA.FN10
Appellant
argues that, in its order, the trial court did not make the necessary finding
that there was proof beyond a reasonable doubt that continued custody of the
child by appellant was likely to result in serious emotional or physical damage
to A.L. We disagree. Judgments are construed like any other instrument; the
determinative factor is the intention of the court, as gathered from the
judgment itself and the record.FN11
Judgments should be reviewed by looking to the judgment itself, pleadings, and
any evidence presented. FN12
In interpreting a lower court's order, we look to the language in which the
order is couched and whether the evidence supports the ruling. FN13
The trial court began paragraph 2 of its order with ?The Court finds that the
Department has proven beyond a reasonable doubt that:? and then set forth two
findings within the remainder of that sentence. It then made three additional
findings, which can be read as continuing the ?beyond a reasonable doubt?
findings. Paragraph 2 of the trial court's order can easily be construed as
expressly making the necessary finding that there was proof beyond a reasonable
doubt that continued custody of the child by appellant was likely to result in
serious emotional or physical damage to A.L.
Appellant
also argues that, even if the order can be construed as making the required
finding, there was not substantial evidence that A.L. was likely to suffer
serious emotional or physical damage if she were returned to appellant. She asks
us to reverse and remand with directions that she be given another six months to
make parole, obtain a job and housing, and demonstrate her sobriety. We decline
to do so. The evidence demonstrated that appellant has abused drugs since she
was twelve, and that, even though she was fully aware that she could lose
parental rights to her daughter, she did not begin to comply with the case plan
or court orders until March 2009, when she was incarcerated. The child has been
in foster care since June 2008, which is most of her young life, and needs a
permanent home. At the time of the hearing, three months before appellant was
expected to be released, she had no driver's license; had no job prospects; and
had only a ?totally inappropriate? home with her grandmother in which to live
upon her release. There was substantial evidence that return of A.L. to
appellant was likely to result in serious emotional or physical damage to the
child.
Affirmed.
ROBBINS
and KINARD, JJ., agree.
FN1.
Although the child's father's parental rights were also terminated in this
proceeding, he does not join in this appeal.
FN2.
25 U.S.C. ? 1902.
FN3.
25 U.S.C. ? 1902.
FN4.
25 U.S.C. ? 1912(f).
FN5.
Timmons
v. Arkansas Dep't of Human Servs.,
2010 Ark.App. 418, --- S.W.3d ----; Ark.Code Ann. ? 9-27-341(b)(3)(A)
(Repl.2009).
FN6.
(Repl.2009).
FN7.
Lee
v. Ark. Dep't of Human Servs.,
102 Ark.App. 337, 285 S.W.3d 277 (2008).
FN8.
See
Albright
v. Ark. Dep't of Human Servs.,
97 Ark.App. 277, 248 S.W.3d 498 (2007).
FN9.
See
Timmons, supra.
FN10.
Id.
FN11.
Bisbee
v. Decatur State Bank,
2010 Ark.App. 459, ---S.W.3d ----.
FN12.
Id.
FN13.
Fox
v. Fox,
68 Ark.App. 281, 7 S.W.3d 339 (1999).