{ "id": 6140500, "name": "Alicia MINTON v. ARKANSAS DEPARTMENT of HUMAN SERVICES", "name_abbreviation": "Minton v. Arkansas Department of Human Services", "decision_date": "2000-12-20", "docket_number": "CA 00-544", "first_page": "290", "last_page": "301", "citations": [ { "type": "official", "cite": "72 Ark. App. 290" }, { "type": "parallel", "cite": "34 S.W.3d 776" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "310 Ark. 633", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1898848 ], "weight": 4, "year": 1992, "opinion_index": 0, "case_paths": [ "/ark/310/0633-01" ] }, { "cite": "284 Ark. 191", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1878582 ], "weight": 3, "year": 1984, "pin_cites": [ { "parenthetical": "decision under prior law" }, { "parenthetical": "decision under prior law" } ], "opinion_index": 0, "case_paths": [ "/ark/284/0191-01" ] }, { "cite": "330 Ark. 152", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 298646 ], "weight": 3, "year": 1997, "opinion_index": 0, "case_paths": [ "/ark/330/0152-01" ] }, { "cite": "Ark. Code Ann. \u00a7 9-27-341", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 7, "year": 1999, "pin_cites": [ { "parenthetical": "a" }, { "page": "(b)(2)(B)" }, { "parenthetical": "a" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 975, "char_count": 24436, "ocr_confidence": 0.756, "pagerank": { "raw": 3.067765424593749e-07, "percentile": 0.857054986603466 }, "sha256": "af5dca9164e8c33cb0fe8281fdc04da0fa28d4c39a32bee62291aa0e6473d5b0", "simhash": "1:fe7d280a302bce52", "word_count": 3995 }, "last_updated": "2023-07-14T20:58:14.113773+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Pittman and Griffen, JJ., agree." ], "parties": [ "Alicia MINTON v. ARKANSAS DEPARTMENT of HUMAN SERVICES" ], "opinions": [ { "text": "Andree Layton Roaf, Judge.\nAlicia Minton appeals a Benton County Chancery Court decree that terminated her parental rights in her daughter M.M, a two-year-old child who had been taken into and remained in the custody of the Department of Human Services (DHS) since shortly after she was born. Minton argues that the court erred in finding that DHS proved by clear and convincing evidence that her parental rights should be terminated. We reverse.\nM.M. was born prematurely on December 2, 1997, at St. Mary\u2019s Hospital in Rogers and was immediately transferred to Arkansas Childrens Hospital in Little Rock, where she remained for approximately two months. On February 6, 1998, DHS filed a petition for emergency custody, alleging that M.M. was dependent neglected. Attached to the petition was an affidavit stating that Minton had admitted to a DHS employee that the baby was unwanted and that she had used drugs extensively during her pregnancy in an effort to abort the child; Minton had visited the child at the hospital only once despite an offer of Medicaid transportation assistance; Minton refused to go to the hospital and \u201clive-in\u201d for three days and learn how to care for M.M. after discharge; and Minton failed to even contact the hospital regarding instruction on how to care for M.M.\u2019s special medical needs. Probable cause was found to place M.M. in DHS custody.\nPursuant to a March 31, 1998, adjudication hearing, the chancellor found that Minton had failed to make arrangements to pick up M.M. from the hospital, had little contact with M.M. while she was hospitalized in Little Rock, had not learned how to care for M.M.\u2019s special medical needs, and had used drugs while she was pregnant with M.M. The chancellor ordered Minton to attend all of M.M.\u2019s medical appointments, obtain stable housing and employment and housing, visit M.M., obtain a drug and alcohol assessment, attend parenting classes, and pay $25 per week child support.\nMinton had made little progress by the time that a permanency planning hearing was held on March 23, 1999. Subsequently, based on Minton\u2019s failure to comply with the case plan, DHS petitioned for termination of her parental rights, alleging that M.M. had remained outside of Minton\u2019s home for a period in excess of twelve months and that Minton had willfully failed to provide significant material support in accordance with her means and had failed to maintain meaningful contact with M.M. The petition also alleged that despite offers of appropriate family services, Minton had failed to correct the conditions which caused removal and that reunification was contrary to M.M.\u2019s health, safety, or welfare.\nAt the June 1, 1999, termination hearing, DHS presented testimony concerning the history of the case and Minton\u2019s failure to comply with the case plan. However, DHS employees also testified that since the March 23, 1999, permanency planing hearing, Min-ton had obtained the required alcohol and drug assessment, begun attending visitation on a regular basis, attended twelve of fifteen of M.M.\u2019s scheduled therapy appointments and medical' appointments, and secured stable employment. Minton had not, however, attended parenting classes, maintained a stable residence, or paid child support.\nAt the conclusion of the hearing, the chancellor found that DHS did not have an appropriate Permanency Placement Plan in place, and therefore, he was precluded by statute from considering the paxental-rights-termination petition. Nonetheless, the chancellor found that there was sufficient clear and convincing evidence to terminate Minton\u2019s parental rights in that she \u201cfailed to materially support the child; she\u2019s failed to attend the child, and take care of its basic needs.\u201d The chancellor then stated that he would \u201cabate\u201d a termination order pending the filing of an appropriate Permanency Placement Plan with the court, and he continued the case for ninety days. The chancellor also ordered DHS to continue reunification efforts, correct problems with DHS\u2019s telephone system so that Minton would have a dependable way of contacting DHS, and make a determination of whether M.M. had bonded with Minton. Minton was ordered to stay in contact with DHS and make as many of M.M.\u2019s medical appointments as possible. Addressing Minton, the chancellor stated:\nMs. Minton, I just have to say to you, just as clearly as I can, that I have entered an Order Terminating your Parental Rights. But I am abating that Order. Not because you have shown me an exemplary change in your circumstances, over the last six or eight months, but mostly because I don\u2019t believe the Department has established a sufficient Permanency Plan for this child. And that gives you the opportunity to show me that, in fact, I should never enter the Termination Order. So you\u2019re on a short rope, ma\u2019am. The way to get firm where you are to where you need to be is very short, and it\u2019s going to take some hard work to get there. And it\u2019s going to take some sacrifices. I don\u2019t know wether you can do those, or not. I\u2019m not sure whether any single married mother who started out in a hole as deep as the one you were in, can get there. But I believe that under the circumstances, this is what the law provides. And so that is the Ruling of this court.\nAfter the judge completed his ruling, DHS asserted that they had an adoptive home interested in M.M., although the family had never met her, and asked the court if it wanted them to pursue placement with this family during the ninety-day abatement. The chancellor replied:\nI am just saying that you have to have a specific plan. How you execute it, what steps you take, how far down that plan you get, this law doesn\u2019t talk about that. It talks about a specific plan for permanency. So if you have that at some point, then we\u2019ll come back. In many ways, this ruling today merely delays the inevitable decision that\u2019s going to have to be made.\nThe foregoing ruling apparently was interpreted differently by the parties. Minton understandably believed that she had been given an opportunity to demonstrate that she could comply with the case plan and ultimately secure custody of M.M. DHS, however, acted as though it had been given the authority and direction to move ahead with placement of M.M. in a permanent adoptive home.\nDHS promptly moved M.M. from the therapeutic foster home she was in into a permanent adoptive home, and filed a motion to lift the abatement. On July 19, 1999, the chancellor signed an order lifting the abatement, then reinstated it after an August 30, 1999, hearing in which he admitted that he had lifted the abatement without reviewing the abated order.\nOne week later, on September 7, 1999, the review hearing that had been scheduled pursuant to the abated order was held. DHS employee Leann Spruell testified that when the abatement was lifted, she attempted to schedule Minton for a \u201clast visit\u201d with M.M., and Minton became furious. However, when the abatement was reinstated DHS resumed services. Spruell admitted that Minton had secured an apartment, a steady job, had attended parenting classes, had not tested positive for drugs, and in short stated that \u201ceverything has been done as far as complying with the case plan.\u201d\nDarlene Vinyard, the adoption specialist from DHS, testified that M.M. was adjusting well to her new adoptive home and stated that the family was willing to adopt M.M. as soon as the six-month waiting period was complete. Vinyard also stated that she observed three of Minton\u2019s visits with M.M., which seemed to be \u201cpleasant,\u201d but she expressed concerns with Minton\u2019s expectations for M.M. in light of the child\u2019s developmental delays and the inadequacy of Minton\u2019s \u201csupport system.\u201d Chris Rodriguez, a DHS probationary trainee, testified and was critical of Minton\u2019s parenting skills based on her observations of a single visit.\nMinton testified that she had complied with the case plan in every respect and continued to attend visits and medical appointments even though it required that she be away from her job. Minton claimed that she had not been informed about the abatement being lifted, and her visitations had been disrupted by DHS. Minton asserted that she had bonded with M.M., that she would be able to manage working and caring for both M.M. and her other child, and that she was retiring her court fines and consequently expected to be able to get her driver\u2019s license back in the near future.\nAt the conclusion of the hearing, M.M.\u2019s attorney ad litem noted that Minton had complied with the case plan and stated that he believed that Minton was sincere. He then moved that the court allow reunification. The chancellor noted how much progress Min-ton had made and decided to \u201cfurther abate\u201d the termination order. He then ordered DHS to begin a plan immediately to reintegrate M.M. into Minton\u2019s home, within sixty days, with increased visitation and \u201cmore and more efforts . . . made to make sure that Alicia Minton is capable of caring and tending to this child, while this process continues.\u201d The chancellor again admonished Minton that M.M. remained in DHS custody and that \u201cthe Order of Termination has not been set aside [but] merely abated.\u201d He then set a review hearing for December 7, 1999, ordered DHS to provide \u201cintensive services to reunify this child with the mother within sixty days, and thereafter, have a thirty-day trial placement, if appropriate.\u201d\nOn November 15, 1999, however, a hearing was granted pursuant to a motion filed by Minton because the trial placement, ordered in the September 7 hearing, had not taken place. M.M.\u2019s attorney ad litem confirmed that trial placement had not taken place and recommended that the court order the trial placement to begin. The prospective adoptive parents also appeared at the hearing with an attorney and moved to intervene in the case. While the chancellor denied their intervention motion, he allowed their attorney to participate in the hearing.\nMinton testified about DHS\u2019s interference with her reunification efforts, including objecting to her using the Jones Center for parenting classes, canceling or interrupting scheduled visits with M.M., and preventing her overnight visitation by having her arrested for an outstanding traffic warrant on the day of her first scheduled overnight visit, and aborting the second scheduled overnight visit because criminal-record investigation forms had not been completed by friends and family and because a guest was present in her home.\nDHS employees admitted to making the call that resulted in Minton\u2019s arrest, denied disapproving the parenting classes, and opined that Minton had not made \u201cany progress\u201d in self-sufficiency because she had an enormous amount of debt. However, they \u201capplauded\u201d Minton\u2019s having kicked her drug habit and securing a residence and steady employment. DHS admitted removing M.M. from Minton\u2019s home because a guest was present and testified that Minton had allowed M.M., who had a history of respiratory problems, to be around smoke because they observed a guest at a birthday party at Minton\u2019s home smoking outside and smoke was \u201cdrifting\u201d toward the child. M.M.\u2019s foster mother testified that Minton had approximately forty visits with M.M. since she was placed in her home and that M.M. seemed insecure after the visits. However, she admitted that it took M.M. several weeks to \u201csetde down\u201d after being placed in her home.\nThe chancellor ruled from the bench he was persuaded that DHS had interfered with the placement of M.M. with Minton. He stated that he wanted a determination of whether or not M.M. \u201cis capable of being re-bonded with her mother,\u201d and that was not provided. He ordered DHS to, within the next five days, provide a case worker that had not been associated with the case, who would be supervised by someone who also was not associated with the case. The attorney ad litem recommended that the trial placement begin, and the chancellor ordered that Minton get the necessary paperwork submitted for day care vouchers and Medicaid coverage.\nThe next hearing in this case was held a month later, on December 20, 1999, in which the issue to be determined was whether Minton had shown that she bonded with M.M. and if not, whether she was likely to be bonded at any time in the near future. DHS employees, who observed Minton\u2019s visits and the single overnight visit with M.M. during the period, in essence testified that during the visits, M.M. behaved as if she wanted to leave, said the word \u201cgo,\u201d came to them, clung to their legs, and cried for \u201cMommy and Daddy\u201d when she became tired. They acknowledged that they had failed to complete the bonding assessment in part because the DHS employee responsible for arranging the assessment had been on vacation for a week. Minton testified that M.M. comes to her, calls her \u201cMommy,\u201d and denied that there were any problems with the visits. Regarding the bonding assessment, Minton stated that she had difficulty in making an appointment because she could not afford to miss any more work. At the close of the testimony, the chancellor announced that it was his conclusion that Minton had not bonded with M.M. and vice versa. He found that the best interests of M.M. dictated that Minton\u2019s parental rights be terminated and that M.M. be freed for adoption. Minton appeals from this decision.\nOn appeal, Minton argues that the trial court erred by ruling that DHS proved by clear and convincing evidence that her parental rights to M.M. should be terminated. Minton asserts that pursuant to Ark. Code Ann. \u00a7 9-27-341 (Repl. 1999), there were two grounds applicable to her case that would justify termination of her parental rights: her failure to correct the conditions that caused the removal despite a meaningful effort by DHS to rehabilitate the home, and her failure to provide significant material support in accordance with her means. She contends that the chancellor erred in finding clear and convincing evidence to support either ground.\nRegarding her failure to correct the conditions that caused the removal of M.M. from her custody, she argues that the chancellor erred in entering an order terminating her parental rights because she had met and continued to meet the \u201cvarious and ever-changing requirements\u201d placed on her by DHS, and because he found that DHS had deliberately interfered with his September 7, 1999, order directing DHS to implement a plan to reunify her with her child. She concedes that she made \u201clittle progress\u201d toward meeting the requirements for reunification during the first several months of the case; however, she asserts that in February of 1999 she began to demonstrate her commitment to reunification by securing a stable residence, maintaining regular employment, completing a drug and alcohol assessment, submitting to random drug screens, attending most of M.M.\u2019s physical therapy sessions and medical appointments, cooperating in taking parenting classes, and consistently exercising her visitation. Accordingly, she contends that DHS did not meet its burden of proving by clear and convincing evidence that despite a meaningful effort by DHS to rehabilitate her home and correct those conditions which caused removal, the conditions had not been remedied. Further, citing Ark. Code Ann. \u00a7 9-27-341 (a), she argues that termination of parental rights should be used only when the evidence shows that the child could not be returned to the parent within a reasonable period of time, and the evidence showed that she had taken steps to have M.M. returned to her in a short amount of time. She contends that one of the only barriers was her lack of transportation for medical appointments, and she was remedying that situation. Minton asserts that as of the termination hearing, M.M. had not been placed in an adoptive home and that a DHS worker testified that any potential adoptive home would require a slow integration process before M.M. could be placed there.\nMinton argues further that, subsequent to the termination hearing, the actions of DHS call into question their intention to provide \u201cmeaningful\u201d efforts at reunifying her with her daughter. She notes that DHS discontinued rehabilitative services shortly after it filed its motion to reconsider that resulted in the chancellor lifting his abatement of the termination order, a motion that the chancellor stated \u201cclearly was not an accurate statement of the case.\u201d Moreover, Minton contends that, in September, DHS essentially prevented her two scheduled overnight visits, and the court actually found that DHS had interfered with the placement. She argues that the observations of the DHS personnel regarding how M.M. responded to her does not constitute clear and convincing evidence that she and M.M. had not bonded because DHS denied her the trial placement she needed in order to establish the bond.\nRegarding the second possible ground for termination, her willful failure to provide significant material support in accordance with her means, which she acknowledges was cited by the termination order, Minton notes that Ark. Code Ann. \u00a7 9-27-341(b)(2)(B), the applicable subsection of the statute setting forth this ground also requires the failure to \u201cmaintain meaningful contact\u201d with her child. She urges this court to read this subsection as not setting forth alternative grounds but rather a two-prong requirement. Minton contends that was the approach taken by the supreme court in Crawford v. Arkansas Dep\u2019t of Hum. Servs., 330 Ark. 152, 951 S.W.2d 310 (1997), when it considered the two parts of the subsection together. She contends that otherwise, a parent in a dependency-neglect case could see her parental rights terminated simply because of her poverty. Minton also argues that while she did not pay the court-ordered support, she did bring M.M. gifts and clothes, and she maintained a residence where M.M. could live and made payments on her court fines so that she could provide transportation for her daughter. She also stated that she was paying support for two children in Arizona and for much of the case, her financial situation was \u201cdire.\u201d We find these arguments persuasive.\nAny party seeking to terminate the parental relationship bears the heavy burden to prove by clear and convincing evidence that the parent has significandy and without just cause failed to communicate with or support the child as required by law or decree. Bush v. Dietz, 284 Ark. 191, 680 S.W.2d 704 (1984) (decision under prior law). Adoption proceedings are in derogation of the natural rights of parents, and statutes permitting such are to be construed in a light favoring continuation of the rights of natural parents. Id.\nIn pertinent part, Ark. Code Ann. \u00a7 9-27-341 provides for termination of parental rights on one or more of the following grounds:\n(A) That a juvenile has been adjudicated by the court to be dependent-neglected and has continued out of the home for twelve (12) months and, despite a meaningful effort by the department to rehabilitate the home and correct the conditions which caused removal, those conditions have not been remedied by the parent. It is not necessary that the twelve-month period referenced in this subdivision (b)(2)(A) immediately precede the filing of the petition for termination of parental rights, or that it be for twelve (12) consecutive months;\n(B) 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. To find willful failure to maintain meaningful contact, it must be shown that the parent was not prevented from visiting or having contact with the juvenile by the juvenile\u2019s custodian or any other person, taking into consideration the distance of the juvenile\u2019s placement from the parent\u2019s home. Material support consists of either financial contributions or food, shelter, clothing, or other necessities where such contribution has been requested by the juvenile\u2019s custodian or ordered by a court of competent jurisdiction. It is not necessary that the twelve-month period referenced in this subdivision (b)(2)(B) immediately precede the fifing of the petition for termination of parental rights, or that it be for twelve (12) consecutive months;\nWhen the burden of proving a disputed fact in chancery court is by clear and convincing evidence, the inquiry on appeal is whether the chancery court\u2019s finding that the disputed fact was proven by clear and convincing evidence is clearly erroneous. Anderson v. Douglas, 310 Ark. 633, 839 S.W.2d 196 (1992). Clear and convincing evidence is defined as \u201cthat degree of proof which will produce in the fact finder a firm conviction as to the allegation sought to be established.\u201d Id. In making such determination, this court must give due regard to the opportunity of the trial court to judge the credibility of the witnesses. Id.\nFirst and foremost, we are mindful of the fact that Ark. Code Ann. \u00a7 9-27-341, by its express language vests a chancellor with discretion to decide whether or not to terminate parental rights, stating: \u201cThe court may consider a petition to terminate parental rights . . . .\u201d (Emphasis added.) Accordingly, the mere existence of potential grounds for termination does not require a chancellor to terminate parental rights. That decision must be guided by a determination of whether or not reunification can be accomplished within a reasonable time so as to provide permanency and stability in a child\u2019s life. See Ark. Code Ann. \u00a7 9-27-341 (a). Here the chancellor, in the exercise of his discretion, essentially gave Minton a final chance to comply with the case plan. At that time, it is apparent that M.M. was going to be moved from her therapeutic foster home, so there was not a permanency issue at that point. Consequently, disposition of this case does not hinge on what occurred prior to the chancellor offering Minton this second chance.\nDHS contends that this case is affirmable based on Minton\u2019s failure to materially support M.M. Minton concedes that she never paid the court-ordered support, and the construction of Ark. Code Ann. \u00a7 9-27-341 that she urges this court to adopt is contrary to the plain wording of the statute. Furthermore, Minton\u2019s resort to Crawford v. Arkansas Dep\u2019t of Hum. Servs., supra, does not compel a different result. While the supreme court in Crauford at one point mistakenly substitutes \u201cand\u201d for the \u201cor\u201d in the statute, in that case, the parent whose rights were terminated had failed both to maintain contact and to support his children. The supreme court did not hold that both failures were necessary. Also, the appellant in Crawfordcls\u00e1med that he provided clothing for his children, and the supreme court did not find that it constituted sufficient support.\nHowever, we cannot find that there is appreciable evidence that Minton had the ability to pay even a nominal amount of support even after she stopped abusing drugs and started working at regular employment. Consequently, we find it hard to conclude that Minton willfully refused to pay the support. Indeed, according to DHS, one of the reasons that it opposed returning M.M. to Minton was that it concluded that Minton\u2019s indebtedness prevented her from achieving self-sufficiency.\nFinally, the chancellor\u2019s requirement that there be a determination of whether or not Minton and M.M. had \u201cbonded\u201d is simply unreasonable given the circumstances of this case. Minton was allowed only a single overnight visit; M.M.\u2019s foster mother acknowledged that M.M. required two or three weeks for \u201csettling in,\u201d and DHS steadfastly opposed giving Minton that kind of time. Moreover, the sparse anecdotal evidence offered by persons who confessed to having no expertise in determining the capacity of M.M. for bonding with her mother does not satisfy the clear-and-convincing-evidence standard. Consequently, we hold that the chancellor\u2019s ultimate conclusion that M.M., a toddler, had not and was unlikely to bond with Minton is clearly erroneous.\nReversed and remanded.\nPittman and Griffen, JJ., agree.", "type": "majority", "author": "Andree Layton Roaf, Judge." } ], "attorneys": [ "Nicole L. Baker, Deputy Public Defender, for appellant.", "Kathy L. Hall, for appellee." ], "corrections": "", "head_matter": "Alicia MINTON v. ARKANSAS DEPARTMENT of HUMAN SERVICES\nCA 00-544\n34 S.W.3d 776\nCourt of Appeals of Arkansas Division II\nOpinion delivered December 20, 2000\nNicole L. Baker, Deputy Public Defender, for appellant.\nKathy L. Hall, for appellee." }, "file_name": "0290-01", "first_page_order": 318, "last_page_order": 329 }