Court of Appeals

Cite as 2022 Ark. App. 485

ARKANSAS COURT OF APPEALS

DIVISION III

No. CV-22-344

PATRICK KUGLER and Tepring loveland APPELLANTS   V.   ARKANSAS DEPARTMENT OF HUMAN SERVICES AND MINOR CHILDREN APPELLEES	Opinion Delivered November 30, 2022   APPEAL FROM THE WASHINGTON COUNTY CIRCUIT COURT [no. 72jv-21-80]     HONORABLE DIANE WARREN, JUDGE   AFFIRMED IN PART; REVERSED AND REMANDED IN PART
RITA W. GRUBER, Judge

 

            This is a termination-of-parental-rights case in which both parents, appellants Tepring Loveland and Patrick Kugler, separately appeal the Washington County Circuit Court’s order terminating their parental rights to Minor Child 1 (05/06/15)[1] and Minor Child 2 (06/21/18) (hereinafter “MC1” and “MC2”). Loveland challenges both the grounds for termination and the finding of best interest for both children. Kugler, MC2’s putative father, argues that the circuit court erred in terminating his parental rights to MC2 under grounds that pertain only to “parents” without first making a finding that Kugler is a parent. We affirm the circuit court’s order with regard to Loveland, but we reverse and remand the court’s termination of Kugler’s parental rights.

            On February 1, 2021, the Arkansas Department of Human Services (“DHS”) filed a petition for emergency custody and dependency-neglect contending that the removal of the children from their parents’ custody was necessary due to parental unfitness. Kugler was named the putative father of MC2, and Jose Castillo was named the putative father of MC1. Kugler and Loveland live together, and Loveland identified Kugler as MC2’s biological father.

            The affidavit attached to the petition provided that Loveland and Kugler had been arrested on January 29 and charged with various drug offenses and with endangering the welfare of a minor. The children were placed in DHS custody. According to the affidavit, the parties’ neighbor and Loveland’s brother-in-law, Daniel Fletcher, sold methamphetamine out of the family’s home while the children were present. The undercover officer who purchased the drugs also reported that syringes loaded with methamphetamine were accessible to the children and that the home was “filled with roaches and pet feces,” clothes, and trash. The children were adjudicated dependent-neglected in an order entered on April 14, 2021, based on parental unfitness, to which Loveland and Kugler stipulated. The court set a goal of reunification with a concurrent goal of placement with a relative and authorized unsupervised visitation and a trial home placement with Loveland and Kugler.

            On April 15, 2021, the trial home placement began. At a review hearing on June 7, 2021, the circuit court found that Loveland was not in compliance with the case plan and that custody could not be returned to her but found that the trial home placement should continue. Specifically, the court found that Loveland and Kugler had maintained stable housing, submitted to random drug screens, participated in parenting classes, and completed drug-and-alcohol assessments. But the court stated that a lab confirmed Loveland had tested positive on June 1 for methamphetamine and that Kugler had been arrested for public intoxication merely days after completing outpatient substance-abuse treatment. The court ordered the parties to refrain from the use of all alcohol and illegal substances. The court also ordered them to continue to work on their sobriety plans and participate in all recommended substance-abuse treatments.

            On June 23, Loveland again tested positive for methamphetamine as well as K2, opiates, and alcohol; on June 28, she tested positive for methamphetamine, K2, and alcohol, and the trial home placement was terminated. When the children were removed, they had bites on their legs from bed bugs in the home. In an order entered July 13, the court found there had been a change of circumstances after Kugler was arrested due to a domestic conflict in the parties’ home.  The court also ordered that a hair-follicle test be performed on Loveland to include an analysis of her prescription medications that she insisted were causing her drug screens to be positive. The court ordered that visitation with the children be supervised. On July 14, a hair-follicle test on Loveland was positive for methamphetamine.

            Kugler continued to test positive for alcohol and THC throughout the case. He was arrested on July 5 for aggravated assault and third-degree domestic battery while in the parties’ home, jailed, and released on July 13. On September 17, he was arrested on a felony warrant out of Kansas and was extradited to Kansas, where he remained until November 30.

            On September 21, the court held a permanency-planning hearing and changed the goal to adoption. The court found that the parties had continued to test positive for alcohol and illegal substances. DHS filed a petition to terminate parental rights on November 12, specifically noting that Kugler had never established paternity as to MC2 but had participated in the case and “acted as the child’s father during the case.”

            The court held a hearing on the petition on December 13 and 14. The court entered an order March 12, 2022, terminating Loveland’s parental rights to both children and terminating Kugler’s parental rights to MC2. DHS stated that, in addition to the positive drug screens in June and July, Loveland had tested positive for alcohol on April 29, April 30, May 4, May 7, June 23, June 28, July 30, August 12, August 26, October 7, October 26, and November 10; had been a no-show or refused to screen on multiple occasions; and had failed to complete an outpatient substance-abuse program or attend NA/AA meetings as recommended. DHS alleged that, despite having no children in the home and being unemployed, Loveland’s home was found in total disarray and unclean on October 26. 

            In its order, the circuit court found grounds of subsequent factors and aggravated circumstances as to both parties, although it continued to refer to Kugler as the putative parent of MC2. The court did not make specific findings in its finding of aggravated circumstances, but it provided a detailed explanation regarding the subsequent-factors ground. The court found that after the adjudication, the existence of a pattern of domestic violence by Kugler against Loveland became evident, but Loveland allowed Kugler to return to the family home without completing any counseling as she had insisted he would have to do. Loveland also allowed her adult son and his girlfriend to stay in her home despite her knowledge that they were using illegal drugs and struggled with addiction. The court also found that Loveland suffers from COPD yet continued to smoke, in spite of acknowledging that her use of cigarettes while using oxygen posed a health threat to her children and to herself. The circuit court found that Loveland tested positive for methamphetamine on June 1, June 23, and June 28 and for alcohol multiple times in April, May, and June while her children were in her custody on a trial home placement. Finally, the court noted that her prognosis in counseling varied between poor, fair, and guarded; she had not completed an outpatient substance-abuse program as recommended by her drug-and-alcohol assessment; and she had not taken responsibility for her substance-abuse issues.

            The court also found that termination was in the children’s best interest, specifically considering the likelihood that they would be adopted and the potential harm that could be caused by returning the children to the parents.

I. Loveland’s Appeal

            We turn first to Loveland’s appeal. She challenges both grounds and best interest. We review termination-of-parental-rights cases de novo. Shawkey v. Ark. Dep’t of Hum. Servs., 2017 Ark. App. 2, at 4, 510 S.W.3d 803, 806. At least one statutory ground must exist, in addition to a finding that it is in the child’s best interest to terminate parental rights; these must be proved by clear and convincing evidence. Ark. Code Ann. § 9-27-341 (Supp. 2021). In making a “best interest” determination, the circuit court is required to consider two factors: (1) the likelihood that the child will be adopted and (2) the potential of harm to the child if custody is returned to a parent. Pine v. Ark. Dep’t of Hum. Servs., 2010 Ark. App. 781, 379 S.W.3d 703. Adoptability is not an essential element but is rather a factor that the circuit court must consider. Tucker v. Ark. Dep’t of Hum. Servs., 2011 Ark. App. 430, 389 S.W.3d 1. Likewise, the potential harm to the child is a factor to be considered, but a specific potential harm does not have to be identified or proved by clear and convincing evidence. Pine, 2010 Ark. App. 781, 379 S.W.3d 703. The potential-harm analysis is to be conducted in broad terms. Id. It is the “best interest” finding that must be supported by clear and convincing evidence. Id. The appellate inquiry is whether the trial court’s finding that the disputed fact was proved by clear and convincing evidence is clearly erroneous. J.T. v. Ark. Dep’t of Hum. Servs., 329 Ark. 243, 947 S.W.2d 761 (1997). Credibility determinations are left to the fact-finder. Kerr v. Ark. Dep’t of Hum. Servs., 2016 Ark. App. 271, at 6, 493 S.W.3d 342, 346. Finally, 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 accomplished in a reasonable period of time as viewed from the child’s perspective. Ark. Code Ann. § 9-27-341(a)(3).

            For her first point on appeal, appellant argues that neither ground found by the circuit court is supported by the evidence. Because proof of only one statutory ground is necessary to terminate parental rights, we turn first to the subsequent-factors ground, for which the court provided a detailed explanation:

            That 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’s 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’s circumstances that prevent return of the juvenile to the custody of the parent.

 

Ark. Code Ann. § 9-27-341(b)(3)(B)(vii)(a). Loveland contends that the court based its finding on her struggle with substance abuse and inappropriate housing, both of which were problems at the beginning of the case and thus, she argues, cannot be “subsequent factors.” We disagree.

            First, neither the termination statute nor our case law requires the circuit court to expressly identify the subsequent factors or issues. Fredrick v. Ark. Dep’t of Hum. Servs., 2010 Ark. App. 104, at 10, 377 S.W.3d 306, 311. Here, however, the court did explain its finding. The court found that, despite the domestic abuse and Loveland’s initial statements to the circuit court that she would not allow Kugler to return absent counseling, Loveland allowed Kugler back in the family home after he was arrested without completing any counseling. She also allowed her adult son and his girlfriend to stay in her home despite her knowledge that they were using illegal drugs and struggled with addiction. Finally, the court found that Loveland suffers from COPD yet continued to smoke, in spite of acknowledging that her use of cigarettes while using oxygen posed a health threat to her children and to herself. The court was entitled to consider these as examples of poor judgment affecting the health, safety, and welfare of Loveland’s children. Moreover, we have consistently recognized that a failure to comply with the case plan and court orders may serve as a subsequent factor on which termination of parental rights can be based. Younger v. Ark. Dep’t of Hum. Servs., 2022 Ark. App. 138, at 8, 643 S.W.3d 487, 493. Additionally, despite the court specifically ordering Loveland to refrain from using illegal substances or alcohol and to participate in the recommended treatment programs, Loveland tested positive for drugs and alcohol multiple times throughout the case and refused to take any responsibility for her actions. Her only response was to argue that the lab tests were not accurate. The court simply did not find Loveland credible. Moreover, Loveland failed to complete treatment or attend NA/AA meetings to address the issues or the court’s concerns. Under these circumstances, we cannot say that the court’s finding of this ground was clearly erroneous. Because the court need find only one ground, we do not address Loveland’s argument regarding aggravated circumstances. Contreras v. Ark. Dep’t of Hum. Servs., 2015 Ark. App. 604, at 5, 474 S.W.3d 510, 514.

            Loveland also argues that the circuit court’s finding that termination of her parental rights was in the children’s best interest is clearly erroneous. Specifically, she contends that the evidence was insufficient to establish potential harm and that the court did not consider the effect on the children should they be separated. With regard to potential harm, Loveland states that she maintained housing; removed her son and his girlfriend from her home; “generally, even if not completely, complied with the court’s orders”; and raised sweet, fun-loving, and kind children. Without evaluating whether all of this is true, these “facts” do not cause the court’s best-interest finding to be clearly erroneous. Potential harm to the child is a factor to be considered by the circuit court, but a specific potential harm does not have to be identified or proved by clear and convincing evidence. Pine, 2010 Ark. App. 781, 379 S.W.3d 703. The potential-harm analysis is to be conducted in broad terms, and credibility determinations are left to the fact-finder. Id. We have long held that past behavior is a predictor of future harm, particularly when it has not abated, as here. Perry v. Ark. Dep’t of Hum. Servs., 2021 Ark. App. 193, 625 S.W.3d 374. The circuit court did not believe Loveland had conquered her substance-abuse issues, and the evidence supports the court’s finding. We defer to the circuit court’s credibility determinations. We note also that a failed trial home placement may be considered in the court’s analysis of potential harm. Gonzalez v. Ark. Dep’t of Hum. Servs., 2018 Ark. App. 425, at 13, 555 S.W.3d 915, 922. Further, all the evidence discussed above to support grounds also supports a finding of best interest regarding potential harm.

            Loveland also argues that the circuit court’s failure to consider the children’s sibling relationship is fatal to its best-interest finding. Without determining whether the court considered this—no evidence was introduced that the children would or would not be adopted together, and there is no indication the court did not consider the issue—we note that evidence of a genuine sibling bond, which was not established in this case, is required to reverse a best-interest finding based on the severance of a sibling relationship. Brown v. Ark. Dep’t of Hum. Servs., 2019 Ark. App. 370, 584 S.W.3d 276. Furthermore, Loveland did not make this particular argument to the circuit court, and we will not address arguments raised for the first time on appeal, even in termination cases. Mitjans v. Ark. Dep’t of Hum. Servs., 2018 Ark. App. 472, 561 S.W.3d 747. We cannot say that the circuit court clearly erred in finding that termination of Loveland’s parental rights was in her children’s best interest.

I. Kugler’s Appeal

            Kugler’s sole point on appeal is that the circuit court erred in terminating his parental rights to MC2 because it failed to find that he is a parent. Although there is a ground in the statute that applies to the termination of the rights of a putative father,[2] in this case, both grounds the court used apply to parents. In support of his argument, appellant relies on Earls v. Arkansas Department of Human Services,  2017 Ark. 171, 518 S.W.3d 81, and cases following Earls, including most recently, Campos v. Arkansas Department of Human Services, 2022 Ark. App. 221, 644 S.W.3d 465.

            In Earls, DNA testing in a dependency-neglect proceeding revealed that Earls was the biological father of twins. The circuit court later appointed legal counsel to represent him; however, he was consistently recognized as a putative father, including in DHS’s petition to terminate his parental rights. At the termination hearing, the circuit court stated that Earls’s status as a parent needed to be addressed. Although there was a discussion regarding his status, no order was entered finding him to be the parent. Earls was listed as the putative father in the order terminating his parental rights. We affirmed the termination, but our supreme court reversed and remanded on a petition for review, holding that the record did not demonstrate that Earls’s legal status “as a biological parent was established to apply to the twelve-month time period described in the statute.” Earls, 2017 Ark. 171, at 11, 518 S.W.3d at 88. The supreme court concluded that Earls’s rights had not attached to thereafter be terminated. The decision noted that there was no order in the record establishing Earls’s legal status.

            We reversed and remanded a termination in Burks v. Arkansas Department of Human Services, 2021 Ark. App. 309, at 11, 634 S.W.3d 527, 533, stating that the circuit court made Burks’s legal status an issue but failed to resolve the matter before terminating his parental rights. We held that the circuit court was required to make a specific finding that Burks is the parent before terminating his rights. Id. We did the same in Campos, holding that without a finding that Campos is a parent, the grounds applying to parents could not be applied to him. Campos, 2022 Ark. App. 221, at 12–13, 644 S.W.3d at 472.

             Here, Kugler was identified as the putative parent of MC2 at the outset of the case, and he continued to be so identified. The petition for termination specifically noted that Kugler had never established paternity as to MC2 but had participated in the case and “acted as the child’s father during the case.” The order terminating parental rights referred to Kugler as the putative parent and made no finding that he is a parent. The statutory grounds alleged by DHS and found by the circuit court required proof that Kugler is a “parent” as a prerequisite to terminating his parental rights. Because the circuit court never entered an order expressly finding him to be a parent, Kugler’s rights had not attached to be terminated. See Earls, supra. Therefore, we hold that the circuit court erred in terminating his parental rights, and we reverse and remand for further proceedings.

            Affirmed in part; reversed and remanded in part.

            Klappenbach and Brown, JJ., agree.

            Leah Lanford, Arkansas Commission for Parent Counsel, for separate appellant Patrick Kugler.

            Brett D. Watson, Attorney at Law, PLLC, by: Brett D. Watson, for separate appellant Tepring Loveland.

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

            Dana McClain, attorney ad litem for minor children.