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Jamie GUARDADO, Appellant v. ARKANSAS DEPARTMENT OF HUMAN SERVICES and Minor Children, Appellees

Court of Appeals of Arkansas, DIVISION III2019-01-16No. No. CV-18-712
568 S.W.3d 2962019 Ark. App. 16

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Opinion

majority opinion

LARRY D. VAUGHT, Judge

Jamie Guardado appeals the Grant County Circuit Courts order terminating her parental rights to five of her six children, R.M., L.M., E.G., L.G., and J.G. We affirm.

On April 26, 2016, the Arkansas Department of Human Services (DHS) took emergency custody of thirteen-year-old twins R.M. and L.M., ten-year-old E.G., nine-year-old L.G., and two-year-old J.G. due to neglect, educational neglect, inadequate shelter, and Guardados drug use. The court subsequently adjudicated the children dependent-neglected based on neglect and parental unfitness, which was in part based on the fact that Guardado tested positive for amphetamines and methamphetamine. The court also found that Guardado had been arrested on felony charges on the day of the adjudication hearing, lacked stable housing, and had made false statements to the court.

The court held review hearings in November 2016 and February 2017, after both of which the court found Guardado in substantial compliance with the case plan. Guardado was granted overnight visitation with her children until a maltreatment allegation arose against Guardados live-in boyfriend, Yengenis Antonio Vallejo Martinez (Tony). The court then entered a no-contact order prohibiting Tony from being around the children. Following a permanency-planning hearing in March 2017, the court found that Guardado was in substantial compliance with the case plan but also found that she had suffered a setback due to relying on others for financial support. The court ordered that Guardado show financial stability and provide DHS with her pay stubs and work schedule.

After several continuances, the court held a fifteen-month review hearing in September 2017. The court found that although Guardado had made measurable progress on the case plan, she had failed to attend the trauma therapy that had been recommended for her in July 2017, and she lacked financial stability sufficient to care for her children. The court continued the goal of reunification but ordered Guardado to comply with trauma therapy and show financial stability by obtaining employment to help provide for her children. The court subsequently ordered Guardado to seek child-support arrearages owed to her, which she did.

On December 13, 2017, the court authorized DHS to file a petition to terminate Guardados parental rights, which it filed on January 3. The petition alleged that termination was appropriate under several grounds: failure to provide significant material support pursuant to Arkansas Code Annotated section 9-27-341(b)(3)(B)(ii)(a) (Supp. 2017); failure to remedy pursuant to Arkansas Code Annotated section 9-27-341(b)(3)(B)(i)(a) ; subsequent factors pursuant to Arkansas Code Annotated section 9-27-341(b)(3)(B)(vii)(a) ; and aggravated circumstances pursuant to Arkansas Code Annotated section 9-27-341(b)(3)(B)(ix)(a)(3)(A) -(B)(i) .

The court held a termination hearing on April 30, 2018. Following the hearing, the court entered an order terminating Guardados parental rights. The court found that Guardados testimony at the hearing was not credible, especially as to her relationship with Tony. The evidence revealed that Tonys name was still on the lease for Guardados apartment; her only form of transportation was his car, which she claimed he had given her; and she continued to rely on Tony and her family to support her financially. Moreover, Guardado had another child with Tony during the pendency of the case. The court also found that Guardado still lacked stable and adequate income and housing, did not have an appropriate childcare plan should the children be returned to her custody, lacked stable transportation, had not consistently visited the children, had not provided support for the children, had not complied with court-ordered trauma therapy, continued to rely on friends and family to resolve her financial problems, had been arrested twice during the pendency of the case for failure to pay court fines, and had not complied with the case plan. The court also found that the children are adoptable, that returning them to Guardados custody would pose a risk to their health and safety, and that termination is in their best interest.

The standard of review in appeals of termination of parental rights is de novo, but we reverse a circuit courts decision to terminate parental rights only when it is clearly erroneous. Ullom v. Ark. Dept of Human Servs. , 340 Ark. 615, 12 S.W.3d 204 (2000) ; Mitchell v. Ark. Dept of Human Servs. , 2013 Ark. App. 715, 430 S.W.3d 851 ; Brewer v. Ark. Dept of Human Servs. , 71 Ark. App. 364, 43 S.W.3d 196 (2001). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a distinct and firm conviction that a mistake was made. Wade v. Ark. Dept of Human Servs. , 337 Ark. 353, 990 S.W.2d 509 (1999) ; Knuckles v. Ark. Dept of Human Servs. , 2015 Ark. App. 463, 469 S.W.3d 377 ; Hopkins v. Ark. Dept of Human Servs. , 79 Ark. App. 1, 83 S.W.3d 418 (2002).

Guardado challenges the sufficiency of the evidence supporting the courts findings that DHS adequately proved four independent statutory grounds for termination. We have repeatedly held that DHS need only prove one ground for termination, so we must affirm if the evidence supports at least one of the statutory grounds at issue in this case. Martin v. Ark. Dept of Human Servs. , 2016 Ark. App. 521, at 11, 504 S.W.3d 628, 635.

Arkansas Code Annotated section 9-27-341(b)(3)(B)(ix)(a)(3) establishes a statutory ground for the termination of parental rights when [a] determination has been made by a judge that there is little likelihood that services to the family will result in successful reunification. Ark. Code Ann. § 9-27-341(b)(3)(B)(ix)(a)(3) . Guardado does not contest the courts finding that there is little likelihood that additional family services would result in successful reunification; her only argument is that the circuit court erred in finding that DHS had provided meaningful services throughout the case. This argument has no merit. We have previously held that a finding of aggravated circumstances does not require that DHS prove that meaningful services toward reunification were provided. Willis v. Ark. Dept of Human Servs. , 2017 Ark. App. 559, at 9, 538 S.W.3d 842, 849 (citing Draper v. Ark. Dept of Human Servs. , 2012 Ark. App. 112, 389 S.W.3d 58 ). Because Guardado has raised no other challenge to the courts aggravated-circumstances finding, and because DHS need only prove one statutory ground supporting termination of parental rights, we affirm the circuit courts finding that termination was supported by sufficient evidence.

Guardados second point on appeal is a challenge to the courts finding that termination is in the childrens best interest. In addition to finding a statutory ground for termination, an order terminating parental rights must also be based on clear and convincing evidence that the termination is in the childs best interest. Smith v. Ark. Dept of Human Servs. , 2018 Ark. App. 380, at 6, 555 S.W.3d 896, 900. When making a best-interest determination, the circuit court must consider the likelihood the child will be adopted and the potential harm the child would face if returned to the parents. Id. Potential harm must be viewed in a forward-looking manner and considered in broad terms. Id.

Guardados best-interest argument does not challenge the courts adoptability finding. Instead, she seems to argue that because the parties stipulated that the children would prefer to be returned to their mothers custody if their home was safe and stable, the termination decision was against their best interest. We disagree. To the extent that Guardado is challenging the courts potential-harm finding, she fails to address the facts on which the courts finding was based: her continued instability and failure to comply with the case plan and this Courts orders. Specifically, the court discussed Guardados ongoing toxic relationship with Tony, her reliance on him and others for transportation and financial support, her failure to complete trauma therapy or provide DHS with evidence of her employment, her failure to consistently visit the children or provide for their support, her reliance on an inappropriate childcare plan should they be returned to her care, and the fact that she had inadequate housing and income to accommodate the children. While the children expressed a preference for returning home with Guardado so long as her home was safe and stable, the courts risk-of-harm finding demonstrates that Guardados home was not safe and stable. Moreover, Guardado has cited no legal authority, and we are aware of none, that would mandate that the circuit courts best-interest determination must accommodate a childs stated preference regarding custody. The court considered the childrens wishes but found that Guardados instability and unwillingness to comply with the case plan presented a risk of harm to their health and safety. We affirm.

Affirmed.

Gruber, C.J., and Klappenbach, J., agree.

Guardado also has a sixth child, born in February 2018, who is not a party to this case.

Tony is the father of Guardados youngest child, born during the pendency of this case. The record contains multiple variations of Tonys first name, including Yengenis and Genesis.

Guardado testified that she worked as a home healthcare aide and planned to bring all six of her children, including an infant son born in February 2018, to work with her while she cared for her clients.