WAYMOND M. BROWN, Judge
Appellant Erica Barnes appeals from the June 9, 2016 order of the Pulaski County Circuit Court terminating her parental rights to her five children, E.B. (DOB 1-15-02), Z.R. (DOB 9-24-06), T.H.1 (DOB 6-20-12), T.H.2 (DOB 8-2-13), and E.H. (DOB 1-1-15). Barnes argues on appeal that the evidence was insufficient to terminate her parental rights. Appellant Tyshon Hall, the father of T.H.1,
This case began after Barnes tested positive for cocaine at the birth of E.H. On January 2, 2015, Barnes tested positive for both cocaine and oxycodone. Barnes had also tested positive for cocaine at her prenatal visit on December 22, 2014. Arkansas Department of Human Services (DHS) took a seventy-two hour hold on the children on January 2, 2015. DHS filed a petition for emergency custody on January 5, 2015, and the court issued an ex parte order for emergency custody that same day. On February 11, 2015, the children were adjudicated dependent-neglected as a result of parental unfitness and neglect based on Barnes's stipulation of cocaine use at or near the time of E.H.'s birth and E.H.'s positive cocaine screen at the time of birth. The order also indicated that the court accepted Barnes's case as "Zero to Three." In the Zero to Three review order of July 13, 2015, the court noted that Barnes had tested positive for alcohol on June 12 and June 26. The court ordered unsupervised visits in Barnes's home with the children on October 5, 2015.
The permanency-planning hearing took place on December 9, 2015. In the order entered on the same day, the court found that Barnes "has checked off boxes, but there are still serious problems with [her] stability and judgment." The order noted in pertinent part that
The court changed the case's goal to adoption and termination of parental rights. It noted that Barnes's continued poor decision making was a present problem.
DHS filed a petition for termination of parental rights on January 11, 2016. DHS listed three grounds for termination against Barnes: (1) the "failure to remedy" ground,
The termination hearing took place on March 7and April 21, 2016. Dr. Paul Deyoub testified that he evaluated Barnes and diagnosed her with cocaine use. He said that she had borderline intellectual functioning due to a 74 IQ, and that she was a child-abuse perpetrator because E.H. was born with cocaine in his system. Dr. Deyoub opined that due to Barnes's cocaine use, she needed individual therapy, residential drug treatment, parenting classes, an adequate place to live and means of employment and support, and evidence of a stable environment for at least six months. On cross-examination, Dr. Deyoub stated that Barnes and Hall had a very unstable relationship. He testified that Hall had failed to show up twice for his psychological appointment in this case.
Barnes testified that she participated in "quite a few services throughout the course of this case," including parenting classes, therapy with Z.R., a psychological evaluation, outpatient treatment at RCA, AA meetings, and the Zero to Three Program before it ended. She admitted that she tested positive twice in June for alcohol;
On cross-examination, Barnes stated that she and Hall had not undergone couple's counseling although she had a battery conviction against Hall. She stated that she had been with Hall for six years but that she was unaware of any convictions he had during that time. She said that Hall went to prison during this time but that the reason "wasn't [her] worry at the time." She admitted that she made no effort to pay off her outstanding utility bills while she lived with Hall's mother. She stated that she had been unable to manage her rent and utilities for a couple of months. She testified that she makes $7.71 an hour at Jason's Deli and that she works approximately twenty-eight hours a week.
Hall testified that he was released from prison on January 4, 2016. He stated that he was placed in custody on April 2, 2015, due to probation revocations on underlying charges. He said that he was unable to participate in services while he was incarcerated but that he did take parenting classes, anger management classes, drug and alcohol treatment, and another class while in prison. He testified that he would be on parole until February 18, 2018. He stated that the residence he and Barnes shared had two bedrooms. He said that if all of the children were returned to them, two children would sleep in each room and E.H. would sleep in the living room with him.
On cross-examination, Hall denied having a positive drug screen on April 2, 2015, while at a criminal hearing. He stated that he received certificates for the classes he took while in prison but that he "left them all behind." He testified that he has had multiple probation revocations in the past five years. He stated that he had never been charged with assault against Barnes. He said that he was on call with Complete Staffing but that he had not been called for a job yet. He stated that he received financial assistance from his family.
On redirect, Hall stated that he pays bills with the income he receives from his family. He said that he works for his family's lawn service "under the table" and receives payment for that.
On re-cross, Hall stated that his payment varied depending on the service put in. He said that on average, he receives
Upon examination by the court, Hall stated that he received payment for the days he worked. However, he said that he could still go to his parents for money if he was in a bind.
Toni Hansberry, the family service worker assigned to the case, testified that the children were removed after E.H. was born with cocaine in his system. She stated that the case was initially a Zero to Three case, which meant that there were the extra benefits of coming to court more frequently; additional counseling; the benefit of a visit coach who monitored the visitation and reported to DHS and the court; additional types of therapy; and overall, a more intensive and hands-on experience. She stated that Barnes enjoyed unsupervised visitation with her children until DHS learned that she had been served with an eviction notice in November. She said that Barnes subsequently moved to a house on Haywood, but that no home study could be conducted because the house did not have any utilities on. She stated that Barnes then moved in with friends and eventually began staying with Hall's mother. According to Hansberry, Barnes moved to another location and subsequently moved to the current location in North Little Rock. Hansberry stated that Barnes had been offered drug screens, supervised and unsupervised visitation, psychological evaluation, parenting classes, Zero to Three Program, individual therapy, outpatient drug treatment, drug-and-alcohol assessment, and bus passes. She stated that Barnes had completed the services offered by DHS. She said that Z.R. was in Centers from August to January and that during that time, Barnes participated in one therapy session and one visit. She stated that she was unaware of the reasons that prevented Barnes from participating more.
Hansberry stated that she did not have any contact with Hall before he was released from prison. She said that Hall did not start any services before going to prison. However, she stated that he did submit to a paternity test, which was positive for the three youngest children. She testified that Hall contacted DHS following his release, and he began to visit his children. She stated that a psychological evaluation had been scheduled but that it would be April before they could see him. Hansberry opined that it was in the children's best interest to have Barnes's and Hall's parental rights terminated.
On cross-examination, Hansberry testified that Barnes never indicated that she and Hall were planning on being a couple upon his release from prison. She stated that permanency, debt, and having a support system were all concerns DHS had for Barnes. Hansberry said that although Barnes completed some of the Zero to Three goals, she never completed stability. She stated that in 2012, there was an unsubstantiated referral concerning Barnes that was very similar to what came to light in 2014. Hansberry opined that the children could not be returned to Barnes and not be placed at risk of harm due to Hall's presence in the residence. According to Hansberry, it would be months before Hall could complete the services necessary to make it safe for the children to return. She also said that there would be some concerns about Hall's criminal history with respect to the safety of the children due to the serious nature of his criminal charges that involved weapons and drugs.
On cross-examination by Barnes's attorney, Hansberry testified that Barnes was required to maintain sobriety and stable housing. She stated that Barnes needed to be able to apply what she learned when
Hansberry stated that they were unable to provide Barnes with budgeting services because there was never a stable home to come to. She stated that there was no cash assistance made to Barnes. She also said that there were not any housing referrals made because DHS does not make housing referrals. Hansberry testified that Barnes still needed redirection with parenting the younger children.
Upon cross-examination by Hall's attorney, Hansberry stated that Hall had submitted to requested drug screens. She said that he had not had a new referral for individual therapy. She stated that DHS did not make any new referrals while Hall was in jail so that his psychological evaluation could be conducted there. She also stated that there was no referral made for Hall to have a drug-and-alcohol assessment. She testified that since Hall was incarcerated during the time of the Zero to Three, he did not receive any additional
On redirect, Hansberry stated that no one had provided DHS a copy of the lease of appellants' current residence. She said that there was a possibility that the utilities would be disconnected if someone decided he/she no longer wanted them in his/her name. She stated that Barnes had not received domestic violence counseling or anything for anger management.
Danyetta Pride, an adoption specialist, testified that the children were adoptable. She stated that as a family group of five with all the behavioral, medical, and developmental issues, there were ten resources available. When the three youngest children are run as a group, there are 146 adoption resources. She stated that there are sixty-five adoption resources for E.B. alone. And she said that there are eighty-two adoption resources for Z.R. by herself. Pride opined that the children did not have issues that would be a barrier to adoption, although the older children had some behavior issues.
Matthew Gerek testified that hair follicle tests were performed on both appellants on February 25, 2016, and that they both were positive for cocaine.
Barnes testified that she felt bad and scared for E.H. when they tested positive for cocaine on January 2, 2015. She stated that she had taken steps to correct that situation. She said that she underwent a drug and alcohol assessment and that she completed outpatient treatment at RCA. She said that she started going to AA meetings and meeting with a sponsor after she got out of treatment. She stated that she worked through the steps but that she still had to work on her amends. Barnes said that she underwent urine tests throughout the case and that they were all negative for drugs. However, she admitted that she tested positive for alcohol on two of the screens. She stated that she has not used alcohol since that time. She testified that she learned redirection and discipline in parenting class, which she successfully completed. She said that Dr. Deyoub performed a psychological evaluation on her and that she learned a lot about herself from the results. She stated that she underwent counseling to work on her anger management and other issues. She said that she works as a cashier at Jason's Deli, and that she trains the new hires. She stated that she left Family Dollar and went to Jason's Deli because it was hard for her to get home at night. She testified that she would like to own her own restaurant in the future. She stated that she had recently done a budget and had done "fantastic" with her bills lately. She said that the gas bill was now in her name and that the light and water bills were in Hall's name. She stated that she received no services from DHS for managing her money. Barnes testified that she and Hall lived together and that their relationship was going "good." She stated that he was currently employed at something like a deli.
On cross-examination by Hall's attorney, Barnes stated that Hall has helped support the household and her sobriety. She stated that they help keep each other clean. She said that Hall was very supportive when it came to visiting the children, and that she believed the children needed him in their lives. She also stated that Hall had expressed his love for the children to her.
On cross-examination by DHS, Barnes testified that she had not used alcohol since June 26, 2015. She stated that the last time she visited Z.R. was January 4 because she did not have a way to Fordyce for the visits. However, she stated that she calls and checks on Z.R. She said that she and Hall started dating in 2010. She stated that she never used cocaine with Hall although
Upon cross-examination by the attorney ad litem, Barnes stated that she was with Hall when he pled guilty to aggravated assault on October 26, 2010. However, she said that she was not with him in January 2011 when a revocation petition was filed against him and he was sent to jail for thirty days. She said she was with him in December 2013 when another revocation petition was filed and he was sentenced to ninety days in jail with fifty-two days jail credit. She also stated that she was aware of the revocation petition filed against Hall in December 2014, which subsequently resulted in him being imprisoned after he tested positive for drugs on April 2, 2015. She further testified
Barnes stated that DHS did not help her figure out her finances and what needed to be done. She said that she did not have a payment plan for her light bill, water bill, or back rent. She stated that Hansberry conducted a home visit on February 10, 2016, and that at that time, the home was heated by gas stoves that had open flames in the front, which was not safe for toddlers. She also stated that at the time of the visit, a couch or sofa blocked the front door. Barnes stated that she had known since the beginning of March that her hair-follicle test was positive for cocaine. She said that she did not go into any treatment program after the positive screen as suggested by her drug and alcohol assessment as well as her psychological evaluation. When asked why her children should be returned to her, Barnes stated
Hall requested that his parental rights not be terminated. He stated that he started visiting his children as soon as he was released from prison. He said that he had visited them every week, sometimes twice a week, since his release. He testified that prior to going to jail in April, he saw his children daily. He stated that he provided them with essentials as well as gifts for the holidays. He said that he had always been able to work and that, when his money was low, he received help from his family. He stated that although he was sentenced to thirty-six months' imprisonment for a revocation, he only served nine months. He said that since his release, he had been
Upon cross-examination by DHS, Hall stated that his parole ends on February 18, 2018. He admitted that he had rules for parole and that he would "get a sanction" if he broke those rules. He stated that returning to prison was a possible sanction, "but they give you chances." He testified that he had heard of other people having their parole revoked but that he did not have any intention of getting revoked. He continued, "I don't think I would go back into custody if DHS were to turn over the hair shaft test to my parole officer." He stated that he and Barnes were talking about getting married. He said that he had referrals for a psychological evaluation and for a counselor before he was incarcerated. He stated that both of his vehicles could travel an hour's distance.
On cross-examination by the ad litem, Hall stated that he currently had a traffic citation in Pulaski County, which he received on March 30, 2016. He said that he was ticketed in February 2015 for driving on a suspended license, but that his license was reinstated in February 2016. He testified that Barnes asks him all the time to take her to Fordyce, but he is unable to because they "have to do maintenance work on the vehicles." He stated that one of his vehicles is down and that the other one has bad tires. He admitted that he missed his March 25, 2015 psychological evaluation, but he stated it was because he had to report to his probation officer. He said that since his release, DHS had informed him that he would be referred for a psychological evaluation. He stated that he
Kathy Crow, the CASA worker assigned to the case, testified that she had seen Hall twice at visitations and that she was able to observe that he had a bond with his children. She stated that Hall did not bring food, gifts, or any other items for the children during the visits she observed. She testified that Hall had helped Barnes since being released by providing her with transportation and sharing the house together. She stated that Hall told her that he was "determined not to be involved in any kind of drugs. That he did not drink and never had." She also stated that Hall said he and Barnes were working together to maintain sobriety. Crow said that based on her interaction with Hall, he is trying to be "helpful as opposed to hurtful in the reunification process." She also stated that Hall had "shown love and bonding with his children."
On cross-examination by DHS, Crow stated that she participated in preparing the CASA report, and that she and her co-volunteer recommended terminating the parental rights of both appellants based on the hair-follicle test.
Upon cross-examination by the ad litem, Crow said that she was not able to observe any visits by Hall before he went to jail.
An order was entered on June 9, 2016, finding that it was in the children's best interest to have appellants' parental rights terminated and that they would be at risk of harm if returned to appellants. Appellants filed timely notices of appeal. This appeal followed.
We review cases involving the termination of parental rights de novo.
The trial court terminated Barnes's parental rights based on all three grounds alleged in DHS's petition. However, only one ground must be proved to support termination.
Although Barnes had successfully completed parenting classes, she still had to be redirected during visitation with her children. The completion of those services did not put her in a capable position to care for her children. Thus, the court's finding that there was little likelihood that continued services to the family would result in successful reunification is not clearly erroneous. Because we find no clear error with this ground, it is unnecessary to address the other grounds.
Barnes also contends that termination of her parental rights was not in the children's best interest because, "some or all of these children are not adoptable." This argument is without merit. The court
Hall argues first that the trial court erred in terminating his parental rights because DHS failed to properly plead the potential-harm prong in its petition. According to Hall, he was not put on notice "with regard to the potential-harm prong or the facts to support that required element." In support of his contention, Hall cites to cases in which a parent was not put on notice of all of the grounds on which termination would be sought.
The court relied on three grounds to terminate Hall's parental rights: the subsequent-factors ground, the aggravated-circumstances ground, and the sentenced-in-a-criminal-proceeding ground. Only one ground is necessary to support the termination of Hall's parental rights. In finding that Hall was sentenced in a criminal proceeding for a period of time that would constitute a substantial portion of his children's lives, the court wrote
At the time of the termination hearing, Hall had just been released from prison for his third violation of probation. He received a sentence of three years' imprisonment, although he served only nine months before being released on parole. However, he was subject to parole until February 2018. Since his release, he had already tested positive for cocaine in a hair-follicle test. The children were one, two, and three years old at the time of the termination hearing, and given their young ages, a three-year prison sentence is a substantial portion of their lives. On these facts, we cannot say that this finding was in error.
Affirmed.
Glover and Whiteaker, JJ., agree.