{ "id": 6137145, "name": "Ruben SMITH v. ARKANSAS DEPARTMENT of HEALTH and HUMAN SERVICES", "name_abbreviation": "Smith v. Arkansas Department of Health & Human Services", "decision_date": "2007-10-03", "docket_number": "CA 07-335", "first_page": "74", "last_page": "84", "citations": [ { "type": "official", "cite": "100 Ark. App. 74" }, { "type": "parallel", "cite": "264 S.W.3d 559" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "93 Ark. App. 386", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6141594 ], "weight": 2, "year": 2005, "opinion_index": 0, "case_paths": [ "/ark-app/93/0386-01" ] }, { "cite": "98 Ark. App. 129", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6138424 ], "weight": 4, "year": 2007, "pin_cites": [ { "page": "136" }, { "page": "143" } ], "opinion_index": 0, "case_paths": [ "/ark-app/98/0129-01" ] }, { "cite": "78 Ark. App. 112", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6137675 ], "weight": 2, "year": 2002, "opinion_index": 0, "case_paths": [ "/ark-app/78/0112-01" ] }, { "cite": "98 Ark. App. 275", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6140767 ], "weight": 2, "year": 2007, "opinion_index": 0, "case_paths": [ "/ark-app/98/0275-01" ] }, { "cite": "98 Ark. App. 328", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6141511 ], "weight": 7, "year": 2007, "opinion_index": 0, "case_paths": [ "/ark-app/98/0328-01" ] }, { "cite": "330 Ark. 134", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 298610 ], "weight": 2, "year": 1997, "opinion_index": 0, "case_paths": [ "/ark/330/0134-01" ] }, { "cite": "91 Ark. App. 309", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6140053 ], "weight": 4, "year": 2005, "opinion_index": 0, "case_paths": [ "/ark-app/91/0309-01" ] }, { "cite": "Ark. Code Ann. \u00a7\u00a7 9-27-341", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 4, "pin_cites": [ { "parenthetical": "b" }, { "parenthetical": "b" }, { "parenthetical": "a" }, { "page": "(b)(3)" } ], "opinion_index": 0 }, { "cite": "353 Ark. 828", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1155558 ], "weight": 2, "year": 2003, "opinion_index": 0, "case_paths": [ "/ark/353/0828-01" ] }, { "cite": "369 Ark. 416", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 4017337 ], "weight": 2, "year": 2007, "opinion_index": 0, "case_paths": [ "/ark/369/0416-01" ] } ], "analysis": { "cardinality": 811, "char_count": 19170, "ocr_confidence": 0.784, "pagerank": { "raw": 5.591260094201898e-07, "percentile": 0.9477838283235818 }, "sha256": "2a1086bbd4a5426c20c1909bfe4668e086bdff88578391f13e675dd4eb815869", "simhash": "1:41ba622ab64fff57", "word_count": 3099 }, "last_updated": "2023-07-14T22:52:18.034517+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Pittman, C.J., and Gladwin, J., agree." ], "parties": [ "Ruben SMITH v. ARKANSAS DEPARTMENT of HEALTH and HUMAN SERVICES" ], "opinions": [ { "text": "John B. Robbins, Judge.\nAppellant Ruben Smith appeals the J termination of his parental rights to his daughter, JS (born 7-31-05). He argues that: 1) the trial court erred in allowing the Arkansas Department of Health and Human Services (DHHS) to amend the termination petition on the day of the termination hearing; 2) there was insufficient evidence to terminate his parental rights; 3) the trial court\u2019s termination order improperly referred to evidence presented at prior hearings. We affirm.\nFactual Background\nOur factual recitation is taken from the court\u2019s termination order and other matters in the record, which Smith designated on appeal to include all pleadings, motions, reports, exhibits, orders, and case plans from October 13, 2005 (the date of the probable-cause order), to January 9, 2007 (the date of the termination order).\nOn October 7, 2005, JS, then less than three months old, tested positive for cocaine at Arkansas Children\u2019s Hospital. Within days, DHHS removed the child from the custody of her mother, Katrina Harden, and on October 13, 2005, the trial court entered a probable-cause order continuing custody in DHHS. The court directed that paternity be established as to JS and two other of Ms. Harden\u2019s children, and an adjudication hearing was set for December 5, 2005.\nSmith acknowledged paternity of JS, and he appeared at the December 5 adjudication hearing. JS was found dependent/neglected based on her testing positive for cocaine and her mother\u2019s drug use. The court, having already entered orders pertaining to Ms. Harden, ordered Smith to obtain stable housing, employment, and income; to keep DHHS informed of his address, telephone numbers, and employment; to have random drug screens; and to undergo a drug and alcohol assessment. Smith was also referred for a GED. Supervised visitation was established for both parents. The goal of the case was reunification, with a review hearing set for March 29, 2006.\nA report prepared by DHHS for the review hearing shows that Smith had not started working on his GED; was living with his aunt; had obtained temporary employment at a video store; had visited JS; and continued to test positive for drugs. After the hearing, the court continued custody in DHHS and suspended visitation until the parents could comply with the court\u2019s orders. A permanency-planning hearing was set for September 20, 2006.\nOn August 14, 2006, DHHS filed a petition to terminate Smith\u2019s and Ms. Harden\u2019s parental rights. The petition alleged that returning JS to her parents was not in her best interest and was contrary to her health, safety, and welfare; that returning her to her parents could not be accomplished in a reasonable period of time as viewed from her perspective; that JS was found dependent/neglected \u201cas the result of neglect and/or abuse that could endanger [her life] which was perpetrated by the juvenile\u2019s mother\u201d; that other factors or issues arose subsequent to the filing of the original dependency-neglect petition demonstrating that returning JS to the custody of her parents was contrary to her health, safety, and welfare; and that, despite the offer of appropriate family services, the parents manifested the incapacity or indifference to remedy the subsequent issues or rehabilitate their circumstances.\nThe permanency-planning hearing proceeded on September 20, 2006. Smith and Ms. Harden tested positive for drugs on that date. A DHHS report stated that Smith had not started working on his GED and that the caseworker could not tell if Smith was employed. Further, visitation with JS remained suspended. The trial court found that neither Smith nor Ms. Harden was in compliance with court orders or the case plan, and the goal of the case was changed to termination of parental rights. A termination hearing was set for November 20, 2006.\nSmith did not appear at the termination hearing but was represented by counsel. At the beginning of the hearing, counsel objected when DHHS moved to amend its termination petition to add that JS had \u201cbeen in the Department\u2019s custody for twelve months or longer.\u201d The trial court allowed the amendment, stating that all participants in the case were aware that JS had been in DHHS custody for over a year.\nThe hearing went forward with testimony from adoption specialist Monica Spencer that the likelihood of adoption for JS and the other children was \u201cvery possible.\u201d DHHS caseworkers testified that they had experienced difficulty maintaining contact with Smith since September 2006. Caseworker Linda Marshall testified that, when visitation with JS was allowed, Smith\u2019s visits were inconsistent. She also said that he continually tested positive for drugs; that he did not follow up on recommendations after receiving a drug-and-alcohol assessment; and that he was not working, as far as she knew. Marshall said further that JS had remained in DHHS custody since October 2005, and she recommended termination of parental rights. The ad litem attorney introduced into evidence certified copies of the court\u2019s probable-cause and adjudication orders. The court also made a finding of reasonable efforts by DHHS without objection by Smith.\nOn January 9, 2007, the court entered an order terminating Smith\u2019s parental rights to JS. The court recited a detailed history of its prior orders and the evidence adduced at the termination hearing and mentioned some evidence from prior hearings. It found that Smith had been inconsistent in visiting JS; that he failed to appear at the termination hearing; that he had multiple, positive drug tests; and that he failed to \u201cengage in the simplest of services.\u201d Under those circumstances, the court said, reunification would be unlikely even if services continued. The court also noted that, despite court-ordered services and intervention, Smith did not maintain meaningful contact with JS and did not rehabilitate himself to the point where reunification was a viable option. Further, the court said, JS had been in foster care since October 2005; she was \u201cyoung and adoptable\u201d; and she should not have to \u201clanguish\u201d in foster care due to the \u201cinaction of the adults in this case.\u201d The court then concluded that it was in JS\u2019s best interest to terminate Smith\u2019s parental rights. Smith filed a timely notice of appeal.\nPreliminary Argument by DHHS\nWe first address DHHS\u2019s argument that \u201cthe appeal should be dismissed because the record is deficient.\u201d DHHS refers to the fact that Smith\u2019s addendum does not contain all relevant pleadings, orders, and exhibits.\nIn support of its argument, DHHS cites Busbee v. Arkansas Department of Health & Human Services, 369 Ark. 416, 255 S.W.3d 463 (2007), where our supreme court dismissed an appeal in a termination-of-parental-rights case because the appellant, proceeding under the relatively new Ark. Sup. Ct. R. 6-9, failed to include in the record various orders that preceded the termination order. However, Busbee applies only to the failure to include relevant orders in the record, which is not an issue here; all relevant orders are included in Smith\u2019s record. The deficiencies that DHHS points to in the present case concern Smith\u2019s addendum. Therefore, Busbee is not on point.\nNevertheless, we agree with DHHS that Smith\u2019s addendum is lacking. Arkansas Supreme Court Rule 6-9 (e)(2)(E) provides that an addendum shall include, among other things, \u201crelevant pleadings, documents, or exhibits essential to an understanding of the case . ...\u201d From a record containing over 800 pages of orders, pleadings, exhibits, and testimony \u2014 much of which was relevant to the trial court\u2019s findings and essential to our understanding of the case \u2014 Smith has addended only the notice of appeal, the termination order, and the termination petition. However, Rule 6-9 allows an appellee to supplement the appellant\u2019s addendum if the appellee considers it defective or incomplete. Ark. Sup. Ct. R. 6-9(f)(2)(C). Supplemental addenda were filed in this case by DHHS and the attorney ad litem, and they include some of the relevant exhibits and orders. We therefore rely on those supplements. Additionally, we see nothing in Rule 6-9 that prohibits us, in the course of our de novo review, from going to the record to affirm. See generally Mobley Law Firm v. Lisle Law Firm, 353 Ark. 828, 120 S.W.3d 537 (2003). Accordingly, we decline DHHS\u2019s request to dismiss the appeal, and we turn to the arguments presented by Smith.\nAmendment To Petition\nSmith argues that the trial court violated his due-process rights when it allowed DHHS to amend the termination petition on the day of the termination hearing. DHHS sought permission to amend its petition to reflect that the children had been in DHHS custody for twelve months or longer, which is a component of two grounds for termination under our statute:\nThat a juvenile has been adjudicated by the court to be dependent-neglected and has continued out of the custody of the parent for twelve (12) months and, despite a meaningful effort by the department to rehabilitate the parent and correct the conditions that caused removal, those conditions have not been remedied by the parent; and\nThat the juvenile has lived outside the home of the parent for a period of twelve (12) months, and the parent has willfully failed to provide significant material support in accordance with the parent\u2019s means or to maintain meaningful contact with the juvenile.\nArk. Code Ann. \u00a7\u00a7 9-27-341 (b)(3)(B)\u00ae (a), (\u00fc)(\u00ab) (Supp. 2005).\nWe find no reversible error. Under Ark. R. Civ. P. 15(a), with certain exceptions not applicable here, a party may amend his pleadings at any time without leave of the court, unless, upon motion of an opposing party, the court determines that prejudice would result or disposition of the cause would be unduly delayed. See Trice v. Trice, 91 Ark. App. 309, 210 S.W.3d 147 (2005). If prejudice or undue delay is demonstrated, the court may strike the amended pleading or grant a continuance. See id. The trial court has broad discretion in allowing or denying amendment of the pleadings. Id. Where neither a continuance is requested nor a demonstration of any prejudice resulting from an amendment is shown, the amendment should be allowed. Turner v. Stewart, 330 Ark. 134, 952 S.W.2d 156 (1997).\nSmith did not request a continuance to meet the substance of the amendment. Nor did he demonstrate prejudice. The amendment added a factual matter that all parties knew or should have known: that JS had been in DHHS custody for more than twelve months. Moreover, in terminating Smith\u2019s parental rights, the trial court cited a ground that does not depend on the child\u2019s being out of the parent\u2019s custody for twelve months \u2014 that there is little likelihood that services to the family will result in successful reunification. See Ark. Code Ann. \u00a7 9-27-341 (b)(3)(B)(ix)(a)(3)(B)(i) (Supp. 2005). Based on these factors, we affirm on this point.\nSufficiency of the Evidence to Support Termination\nTermination of parental rights is an extreme remedy and in derogation of the natural rights of parents, but parental rights will not be enforced to the detriment or destruction of the health and well-being of the child. Meriweather v. Ark. Dep\u2019t of Health & Human Servs., 98 Ark. App. 328, 255 S.W.3d 505 (2007). Grounds for termination of parental rights must be proven by clear and convincing evidence. Id. Clear and convincing evidence is that degree of proof that will produce in the fact finder a firm conviction as to the allegation sought to be established. Id. When the burden of proving a disputed fact is by clear and convincing evidence, the appellate inquiry is whether the trial court\u2019s finding that the disputed fact was proven by clear and convincing evidence is 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.\nThe goal of our termination statute is to provide permanency in a child\u2019s life in circumstances where returning the child to the family home is contrary to the child\u2019s health, safety, or welfare and the evidence demonstrates that a return to the home cannot be accomplished in a reasonable period of time as viewed from the child\u2019s perspective. Ark. Code Ann. \u00a7 9-27-341 (a) (3) (Supp. 2005). Parental rights may be terminated if clear and convincing evidence shows that it is in the child\u2019s best interest. Ark. Code Ann. \u00a7 9-27-341(b)(3) (Supp. 2005). Additionally, one or more statutory grounds must be shown by clear and convincing evidence. Meriweather, supra.\nWe cannot say that the trial court clearly erred in this case. In its adjudication order, the court directed Smith to obtain stable housing, employment, and income; to keep DHHS informed of his address, telephone numbers, and employment; to have random drug screens; and to undergo a drug-and-alcohol assessment. The court also established visitation with JS and referred Smith for a GED. Yet, the evidence shows that Smith persistently failed to comply with the court\u2019s order and failed to take advantage of the family services being offered. He was inconsistent in his visitation of JS. In fact, his visitation was eventually suspended and never reinstated because of his disobedience of court orders. He tested positive for drugs throughout the case, including on the date of the permanency-planning hearing, and did not follow up on recommendations resulting from a drug-and-alcohol assessment. Further, he was not working or pursuing his GED. Additionally, he was generally unavailable to DHHS workers, and he failed to appear at the termination hearing. Considering these factors, along with Ms. Spencer\u2019s testimony that adoption ofJS was \u201cvery possible,\u201d we do not believe that the trial court clearly erred in finding that termination of parental rights was in JS\u2019s best interest.\nWe also find no clear error in the trial court\u2019s determination that reunification would be unlikely even if services continued. Arkansas Code Annotated section 9-27-341 (b)(3)(B)(ix)(a)(3)(B)(/) (Supp. 2005) establishes a ground for termination where the parent is found by a court to have subjected anyjuvenile to \u201caggravated circumstances.\u201d The term \u201caggravated circumstances\u201d includes the following definition:\nA juvenile has been abandoned, chronically abused, subjected to extreme or repeated cruelty, sexually abused, or a determination has been made by a judge that there is little likelihood that services to the family will result in successful reunification.\n(Emphasis added.) This type of aggravated circumstance can occur where a parent is not following through with offers of assistance; is not completing basic goals of the case plan, such as obtaining appropriate jobs and housing; and there is a lack of significant progress on the parent\u2019s part. See, e.g., Davis v. Ark. Dep\u2019t of Human Servs., 98 Ark. App. 275, 254 S.W.3d 762 (2007). This describes Smith\u2019s conduct in this case quite accurately.\nMoreover, in our de novo review, we could hold alternatively that other grounds for termination were met. See Johnson v. Ark. Dep\u2019t of Human Servs., 78 Ark. App. 112, 82 S.W.3d 183 (2002). Arkansas Code Annotated section 9-27-341(b) (3) (B)(vii)(fl) provides as a ground for termination:\nThat other factors or issues arose subsequent to the filing of the original petition for dependency-neglect that demonstrate that return of the juvenile to the custody of the parent is contrary to the juvenile\u2019s 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 or rehabilitate the parent\u2019s circumstances that prevent return of the juvenile to the custody of the parent.\nSmith\u2019s behavior in the months following the filing of the dependency-neglect petition matches up well with this statutory language. Despite DHHS\u2019s provision of reasonable services, he engaged in continuous drug use throughout the case and took no steps to remedy his problem; exhibited a lack of cooperation; was apathetic toward the outcome of the termination hearing; and was indifferent to complying with court orders.\nIn light of the foregoing, we cannot say that the trial court\u2019s termination of Smith\u2019s parental rights was clearly erroneous.\nTrial Court\u2019s Consideration of Evidence From Prior Hearings\nSmith argues that, because the termination order \u201ccontains evidence not presented at the termination hearing,\u201d it violates Ark. Sup. Ct. R. 6-9. The relevant portion of that rule reads:\nThe record for appeal shall be limited to the transcript of the hearing from which the order on appeal arose, any petitions, pleadings, and orders relevant to that hearing, and all exhibits entered into evidence at that hearing.\nArk. Sup. Ct. R. 6-9(c)(l).\nThe trial court\u2019s order does in fact refer to prior orders and evidence from earlier proceedings. However, we find no error. In Osborne v. Arkansas Department of Human Services, 98 Ark. App. 129, 252 S.W.3d 138 (2007), the appellant argued that the trial court erred in relying on evidence from prior hearings in a termination case. We disagreed and stated:\nThe process through which a parent or parents travel when a child is removed from their home consists of a series of hearings \u2014 probable cause, adjudication, review, no reunification, disposition, and termination. All of these hearings build on one another, and the findings of previous hearings are elements of subsequent hearings.\nId. at 136, 252 S.W.3d at 143 (quoting Neves da Rocha v. Ark. Dep\u2019t of Human Servs., 93 Ark. App. 386, 219 S.W.3d 660 (2005)).\nWe recognize that the termination order in Osborne was entered before the effective date of Rule 6-9, but we see no reason to depart from its holding. Rule 6-9 governs \u201cappeals in dependency-neglect cases.\u201d It contains provisions pertaining to appealable orders, notices of appeal, the record on appeal, the parties\u2019 petitions and responses, and other appellate forms and procedures. It does not state that it governs a trial court\u2019s manner of deciding dependency-neglect proceedings. In particular, we find nothing in the rule that dictates what evidence may be considered by a trial court in termination proceedings. We therefore reject Smith\u2019s argument.\nConclusion\nFor the reasons stated, we affirm the trial court\u2019s termination of Smith\u2019s parental rights to JS.\nAffirmed.\nPittman, C.J., and Gladwin, J., agree.\nBetween October 2005 and December 2005, Ms. Harden repeatedly tested positive for cocaine, marijuana, or both.\nThe court also terminated Ms. Harden\u2019s parental rights to JS and two other children and terminated the parental rights of the putative fathers of those children. The only termination at issue in this appeal is the termination of Smith\u2019s parental rights to JS.", "type": "majority", "author": "John B. Robbins, Judge." } ], "attorneys": [ "Therese M. Free, for appellant.", "Gray Allen Turner, Office of Chief Counsel, for appellee.", "Merry Alice Hesselbein, attorney ad litem." ], "corrections": "", "head_matter": "Ruben SMITH v. ARKANSAS DEPARTMENT of HEALTH and HUMAN SERVICES\nCA 07-335\n264 S.W.3d 559\nCourt of Appeals of Arkansas\nOpinion delivered October 3, 2007\nTherese M. Free, for appellant.\nGray Allen Turner, Office of Chief Counsel, for appellee.\nMerry Alice Hesselbein, attorney ad litem." }, "file_name": "0074-01", "first_page_order": 102, "last_page_order": 112 }