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                 ARKANSAS COURT OF APPEALS
                                         DIVISION I
                                         No. CV-16-751

                                                    Opinion Delivered   January 18, 2017

MONTANA GUTHREY                                     APPEAL FROM THE PULASKI
                               APPELLANT            COUNTY CIRCUIT COURT,
                                                    ELEVENTH DIVISION
V.                                                  [NO. 60JV-14-1676]

ARKANSAS DEPARTMENT OF HUMAN                        HONORABLE PATRICIA ANN JAMES,
SERVICES AND MINOR CHILDREN                         JUDGE
                     APPELLEES
                                                    REVERSED


                               LARRY D. VAUGHT, Judge

       Appellant Montana Guthrey appeals the Pulaski County Circuit Court’s order

terminating her parental rights to her four minor children. Guthrey challenges the sufficiency

of the evidence supporting the circuit court’s findings as to the statutory grounds for

termination and as to the children’s best interest. We agree that the evidence was legally

insufficient to support the circuit court’s findings, and we therefore reverse.

       Montana Guthrey’s four young children were removed from her custody and placed in

the care of the Arkansas Department of Human Services (DHS) in December 2014, following

Guthrey’s arrest as the result of a traffic stop during which police found drugs and drug

paraphernalia in a car driven by Guthrey’s boyfriend, Kirk Childers, and in which Guthrey and

two of her children were passengers. Guthrey told the police that she and her four children

lived with her brother and sister-in-law. Upon investigation as to whether the home was an
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appropriate place for the children to remain while Guthrey was incarcerated, Guthrey’s sister-

in-law failed a drug test, and all four children were taken into DHS custody.

       On February 18, 2015, the circuit court adjudicated Guthrey’s four children dependent-

neglected based on a stipulation of parental unfitness and neglect because Guthrey had been

arrested and had tested positive for benzodiazepines and PCP at the time of her arrest. The

case goal was set as reunification and the case was placed in the court’s “Zero to Three”

program that allowed for more frequent review hearings and additional services. During

several subsequent Zero to Three review hearings, the court noted Guthrey’s progress in

working the case plan. By March 11, 2015, she had successfully completed her psychological

evaluation and was granted additional visitation with her children. In April, the court stated

that Guthrey was compliant with the case plan and was “making great progress.” In June,

Guthrey was compliant and was receiving outpatient drug treatment and counseling, was

attending AA/NA support group meetings, had passed all drug screens, had maintained a

clean and appropriate home, and was abiding by all court orders. However, the June order

noted that “there have been some bumps in the road” without specifying the problems.

       One of those “bumps in the road” may have been a reference to the fact that Guthrey

was pregnant, which was first noted by the court the following month in the July review order.

The court stated that it would give her “one more [Zero to Three] review, with the caveat that

reunification may not remain the goal” and stated that “if today were permanency planning,

there is no doubt what the next hearing would be.” The court stated that Guthrey had

“squandered seven months” of the case and that her priority had not been her children. The

court expressed disapproval of her pregnancy, stating, “[Guthrey] cannot handle the four



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children she has, and she is adding another child into this mix with a father who will be in

prison,” referring to Kirk Childers. The court admonished Guthrey, stating that “[m]en [are]

the worst choice this court repeatedly sees; they are always the same man in a different skin,

and they are never appropriate and never stick around.”

       At the August hearing, the court entered an order stating that Guthrey had “done a lot

of positive things on her drug treatment,” but that she had more work to do. The court

explained that it was willing to give Guthrey additional time and support at the upcoming

permanency-planning hearing. It also modified the visitation schedule to allow for biweekly

home visits, including Saturday visits of up to five hours. As part of this order, the court stated

that “there shall be no men in her home; no one but family . . . shall be in the home for visits.”

       In November, the court held a permanency-planning hearing at which Guthrey’s

caseworker praised the progress she had made in overcoming her drug addiction. The court’s

permanency-planning order required Guthrey to continue working the case plan and receiving

services, but it changed the case goal from reunification to termination and adoption. Again,

the court recognized that Guthrey had maintained stable and appropriate housing and

employment, had completed most services, had not tested positive for any drugs, had

consistent visits with her children, and had gotten her driver’s license reinstated. Her

caseworker requested that the court give her three more months to work toward reunification

and expressed the opinion that the children were ready to be reunified with their mother.

       The evidence also revealed that Guthrey was in a new relationship with a disabled

veteran she had met in AA/NA who was also a recovering alcoholic. She had ended her

relationship with Kirk Childers when he went to prison, Mr. Childers had voluntarily



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relinquished his parental rights to their child, and he was no longer a part of her life. She

admitted that the man she was now seeing had been in her home during the pendency of the

case, noting one evening she had friends over for a game night and he had come to get a

lawnmower. However, there was evidence that his car had been seen at Guthrey’s home late

into the night when no one else was there. This was when the children were not present, and

Guthrey stated that he had never been around her children and would not be around them if

they were returned to her.

       Guthrey also testified that, as part of her twelve-step program, she was working on

improving her “character defects,” and she listed honesty as something her sponsor was

helping her work on. She admitted that, approximately a year prior, when she first began

working the case plan, she had falsely stated that she was regularly attending AA/NA meetings

that she was not attending. She said that she was “still continuing my rehab” at the time. She

also acknowledged that, although she had been ordered to attend three AA/NA meetings per

week, there had been a time during the course of the case that she could manage to attend

only one per week, due to working two jobs and completing all other court-ordered services.

Finally, she acknowledged that the results of her psychological evaluation indicated that she

needed to address “decision making” and “poor choices,” which she agreed had been a

problem in her life, specifically noting her drug use with Kirk Childers. She stated that she had

recently restarted individual therapy on her own accord.

       Guthrey testified that she was working two jobs while also completing all of the

required services and therapies for the case plan. She stated that her father-in-law had helped

her pay rent for a few months and acknowledged that at one point there had been an eviction



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notice against her, which she claimed was due to missing a deadline for re-signing her lease

when her apartment was sold. She testified that she had maintained a stable, appropriate home

and that it was fully ready for the return of her children.

       Despite the caseworker’s praise and request for more time, the court found that

Guthrey’s significant progress was not enough to forestall termination proceedings. The court

stated that it had concerns about Guthrey’s honesty, finding that she had been “evasive”

throughout the case. The court stated that “mother is addicted to bad men” and “being

addicted to men is just as bad as being addicted to drugs.”

       In January 2016, DHS and the attorney ad litem filed joint petitions to terminate

Guthrey’s parental rights. The evidence at the termination hearing was essentially the same as

at the permanency-planning hearing: Guthrey had complied with the case plan and had

successfully completed drug treatment as well as all other court-ordered services and therapies.

She had given birth during the case to a fifth child whose father, Kirk Childers, was

incarcerated. She had begun dating a recovering alcoholic. He had been in her home, even late

into the night, but never when the children were present. She had maintained appropriate

employment and housing and had frequently and successfully exercised visitation with the

children.

       The court entered an order terminating Guthrey’s parental rights on June 9, 2016,

finding that termination was in the children’s best interest because returning them to her care

would expose them to a risk of harm based on her poor judgment and inability to keep them

safe. It also found three statutory grounds for termination: failure to remedy, subsequent

factors, and aggravated circumstances. Guthrey filed a timely notice of appeal.



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          In Knuckles v. Arkansas Department of Human Services, we explained that we review

termination-of-parental-rights cases de novo. 2015 Ark. App. 463, at 2–3, 469 S.W.3d 377,

378–79 (citing Dinkins v. Ark. Dep’t of Human Servs., 344 Ark. 207, 40 S.W.3d 286 (2001)).

However, we reverse a trial court’s decision to terminate parental rights only when it is clearly

erroneous. Ullom v. Ark. Dep’t of Human Servs., 340 Ark. 615, 12 S.W.3d 204 (2000); Mitchell v.

Ark. Dep’t of Human Servs., 2013 Ark. App. 715, 430 S.W.3d 851; Brewer v. Ark. Dep’t 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. Dep’t of Human Servs., 337 Ark. 353,

990 S.W.2d 509 (1999); Hopkins v. Ark. Dep’t of Human Servs., 79 Ark. App. 1, 83 S.W.3d 418

(2002).

          Guthrey challenges the sufficiency of the court’s evidence as to each statutory ground

and the best-interest finding. Arkansas law provides, as one of the statutory grounds for

termination, that the “juvenile has been adjudicated by the court to be dependent-neglected

and has continued to be 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.” Ark. Code Ann.

§ 9-27-341(b)(3)(B)(i)(a) (Repl. 2015). Despite conceding that Guthrey had fully remedied her

drug problems, the court found that she had not remedied the “poor judgment” that originally

caused the removal of her children. On appeal, Guthrey argues that (1) the court erred in

framing the original cause of removal so broadly and (2) there was insufficient evidence to

support the court’s finding of poor judgment.



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       We agree that the court erroneously defined the condition causing removal of

Guthrey’s children as “poor judgment.” It is clear from the court’s previous orders that the

children were removed from Guthrey’s custody due to parental unfitness and neglect

stemming from her arrest pursuant to the traffic stop during which drugs and drug

paraphernalia were found in the car in which she and her children were passengers. Upon

arrest, she tested positive for illegal drugs, and it was revealed that she and her children had

been living in a home with other drug users. These facts were the bases for the stipulation of

unfitness and neglect that resulted in her children’s adjudication as dependent-neglected.

Every alleged fault, error, or failure in Guthrey’s parenting was directly related to the use of

illegal drugs. By framing the condition causing removal so broadly as “poor judgment,” the

court violated the statutory requirement that this ground be focused on the specific conditions

that caused removal. As a result, it rendered the alleged “condition” so vague as to be

essentially meaningless.

       Alternatively, we agree with Guthrey’s argument that there was insufficient evidence to

support the court’s finding that she had failed to remedy her “poor judgment.” In support of

this finding, the court relied on Guthrey’s relationships with “inappropriate” men and her

evasiveness throughout the case. As to Guthrey’s romantic relationships, she acknowledged

that her relationship with Childers involved drug use and that he had been in and out of prison,

qualifying him as an “inappropriate” man, but Guthrey testified that she had ended that

relationship and that Childers was no longer a part of her life. There was no evidence in the

record to contradict these statements. The court also found Guthrey’s new romantic interest

to be inappropriate simply because he was a fellow recovering addict whom she had met in



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AA/NA. Dr. Deyoub opined that he could potentially pose a risk to the children if he relapsed.

However, we note that such a statement is pure speculation, and the record reveals a complete

lack of evidence to support the conclusion that this man had in any way been a negative

influence on Guthrey or presented a risk to her children. Guthrey’s own testimony revealed

that he had supported her efforts to maintain sobriety, which the court had found her to have

successfully achieved.

       The only other finding relied on by the court to justify its finding that Guthrey had

failed to remedy her “poor judgment” was the fact that she had been evasive and less than

honest throughout the case. The termination order does not clearly specify particular instances

of dishonesty, but it seems to include the fact that she was evasive about her romantic

relationships and her pregnancy, she had exaggerated her financial stability and downplayed

her struggles to pay rent, and she had provided assurances that her criminal charges were being

resolved when in fact they remained pending. We respect and give deference to the court’s

determination that Guthrey was not credible. Lowder v. Gregory, 2014 Ark. App. 704, at 14, 451

S.W.3d 220, 229. However, even when we defer to the court’s finding that Guthrey lacks

credibility and disregard her own self-serving testimony, we are left with insufficient evidence

to support the court’s findings. We note that lack of credibility is not, in and of itself, a

condition warranting removal of one’s children and therefore does not amount to the failure

to remedy such a condition. As we stated in Geren-Williams v. Geren, 2015 Ark. App. 197, at 9,

458 S.W.3d 759, 766, which hinged on whether there had been a material change of

circumstance warranting a modification of child custody, “a credibility determination, on its

own, does not create a material change in circumstances. Credibility describes a quality of the



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witness (the quality of being believable or trustworthy, not an independent fact or

circumstance).” We went on to say, “[s]tated more plainly, we defer to a circuit court’s

credibility determinations, but those determinations must relate to testimony or evidence

regarding material facts” in order to support the circuit court’s findings. Geren-Williams, 2015

Ark. App. 197, at 15–16, 458 S.W.3d at 769. As in Geren-Williams, we hold that the circuit court

erroneously substituted its credibility determination for substantive evidence sufficient to

support its finding.

       The circuit court relied on the same analysis to support its finding of two other

statutory grounds and best interest. For each, it repeatedly framed Guthrey’s parenting

problems as “poor judgment” manifested through dishonesty and relationships with

inappropriate men.1 As discussed above, there was insufficient evidence to support each

finding.

       Regarding the existence of subsequent factors, the court noted that Guthrey had

become pregnant during the case but did not provide any analysis as to why her pregnancy

met the statutory requirement that the subsequent factor “demonstrate that placement of the

juvenile in the custody of the parent is contrary to the juvenile’s health, safety, or welfare.”

Ark. Code Ann. § 9-27-341(b)(3)(B)(vii). There is simply no evidence in the record to indicate




       1In this case, it was also logically inconsistent for the court to have relied on the exact
same facts for both its “failure to remedy” and “other subsequent factors” findings. The
problems either caused the children’s removal or they arose subsequent to removal, but not
both. This demonstrates the error of framing the condition or subsequent factor as broadly as
“poor judgment,” because such a vague umbrella term would encompass all of a parent’s
shortcomings.

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that the birth of Guthrey’s baby would create any risk to her other children’s health, safety, or

welfare.

       Likewise, the court’s findings were insufficient to support a finding that Guthrey

subjected the children to aggravated circumstances, which are defined by the statute as

including “little likelihood that services to the family will result in successful reunification.”

Ark. Code Ann. § 9-27-341(b)(3)(B)(ix)(a)(3)(B)(i). Far from demonstrating an inability or

indifference to remedying her problems, Guthrey had diligently and successfully worked her

case plan and utilized all available services. We find insufficient evidence to support the court’s

finding of aggravated circumstances.

       Finally, the court relied on the same findings to support its conclusion that termination

of Guthrey’s parental rights was in her children’s best interest because returning them to her

custody would expose them to a risk of harm. The juvenile code requires termination to be

supported by clear and convincing evidence that returning a child to his parent would place

the child at risk, “specifically addressing the effect on the health and safety of the child.” Ark.

Code Ann. § 9-27-341(b)(3)(A)(ii). As we have discussed above, there is insufficient evidence

that returning the children to Guthrey would pose any risk to their health and safety. By all

accounts, she successfully remedied her drug problems, diligently completed all required

services and therapies, maintained stable and appropriate housing and employment, and

successfully exercised extended visitation with her children. Her caseworker testified that her

children love her and were ready to go home. Given these facts and the lack of evidence to

support the court’s concerns, we hold that there was insufficient evidence to support the

court’s best-interest finding.



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Reversed.

GLADWIN and HARRISON, JJ., agree.

Tina Bowers Lee, Arkansas Public Defender Commission, for appellant.

Mary Goff, Office of Chief Counsel, for appellant.

Chrestman Group, PLLC, by: Keith L. Chrestman, attorney ad litem for minor children.




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