                                Cite as 2016 Ark. App. 202



                ARKANSAS COURT OF APPEALS
                                      DIVISION I
                                    No. CV-15-1018



                                               Opinion Delivered   April 13, 2016

   CIERA ROBINSON                       APPEAL FROM THE CONWAY
                              APPELLANT COUNTY CIRCUIT COURT
                                        [NO. JV-14-01]
   V.
                                               HONORABLE TERRY SULLIVAN,
   ARKANSAS DEPARTMENT OF                      JUDGE
   HUMAN SERVICES AND MINOR
   CHILDREN
                     APPELLEES
                                               AFFIRMED


                          BRANDON J. HARRISON, Judge

        Ciera Robinson appeals the Conway County Circuit Court’s termination of her

parental rights to her children D.D. and S.D. She argues that termination was not in her

children’s best interest and that it does not fulfill the purpose of termination under Ark.

Code Ann. § 9-27-341(a)(3) (Repl. 2015). We affirm.

                                          I. Facts

        The case began on 1 January 2014 when Robinson called the police to report that

Bobby Ray Simmons, Jr., a celebrity, raped her in her sleep and was punishing her and

other women. She also said, among other things, that she and Bobby Ray had a child

together named Elijah but he was not born yet. She told the police that she had thought

about ending her life. After police officers arrested Robinson for marijuana possession, the
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Arkansas Department of Human Services (DHS) took emergency custody of D.D. and S.D.

because the children lacked a caregiver. Robinson told the caseworkers that the children’s

father, Montana Dean, lived in Ohio and that she had obtained a protection order against

Dean for allegedly molesting D.D. and S.D.

      The circuit court adjudicated the children dependent-neglected in February 2014.

Robinson was not present for the adjudication hearing. Robinson was present for a May

2014 review hearing. In the May review order, the circuit court wrote: “The court agreed

to change the goal today based upon the testimony presented and the fact that mom has not

complied since the children were removed on 1/1.” The “concurrent plan of this case shall

continue to be reunification.         The goal is adoption or placement with a legal

guardian/permanent custody.” The court noted that Robinson had not visited the children

since February and also observed:

              Ciera does not have an identification card. Ciera testified she is homeless
       and has been kicked out of shelters because Nicki Manaj [sic] is trying to kill her.
       She was in a mental hospital in Ohio. Admits she is bipolar and sees spirits.

              The father, Montana Dean, is not part of the case and has no significant
       contacts with his children.

       In October 2014 the court entered an order terminating DHS’s obligation to provide

reunification services to Robinson. The court noted the testimony of the children’s father,

Montana Dean, that “Ciera sees spirits and has sudden mood swings,” that they fought in

the past, and that he was convicted of domestic abuse against her. According to Dean,

Robinson left Ohio and did not contact him to tell him where the children were, and he

recently found out the children were in DHS custody and came down for the hearing. The

court wrote:
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               The Court found specifically that there is little likelihood that services will
       result in reunification due to the mother’s mental instability in continuing to
       believe that nationally-known entertainers are trying to get her and rape her and
       that she is off her medication and believes that she does not need any. She has
       been without stable housing for most of the case and has been discharged from
       multiple shelters and spent two months in jail. She has had district court criminal
       cases in three separate counties since the case opened. The Court noted the
       therapist’s statement that when the children are permanently placed somewhere,
       they will need long-term, intensive care with structure and stability and the Court
       believes Ciera cannot provide this. The Court also found that [the] children were
       subjected to aggravated circumstances due to abandonment. Ciera abandoned
       her children since the case has been opened for ten months and she has not visited
       her children since February and up until very recently, she made no attempts to
       reunify with them.

In short, the circuit court found that there was little likelihood that services would result in

reunification and concluded that aggravated circumstances were present.

       In a permanency-planning order entered the same day the court explained that:

       mindful of the available permanency planning dispositions and accordance with
       the best interest, health and safety of the juveniles does hereby determine the goal
       of the case shall be: authorizing a plan to place custody of the juveniles with a
       parent, guardian, or custodian. The court finds the parent, guardian, or custodian,
       is complying with the established case plan and orders of the Court, making
       significant measurable progress toward achieving the goals established in the case
       plan, and diligently working towards reunification or placement in the home of
       the parent, guardian, or custodian. Placement of the juveniles in the home of the
       parent, guardian, or custodian shall occur within a time frame consistent with the
       juveniles’ developmental needs but no later than three (3) months from the date
       of the permanency planning hearing. The concurrent goal is adoption.

              The Court finds the case plan, services and placement in therapeutic foster
       home does meet the special needs and best interest of the juveniles, with the
       juveniles’ health, safety and educational needs.
       ....

               An ICPC home-study from Ohio was approved for Timothy and April
       Moore. Timothy is the uncle of Ciera. The court was very concerned about the
       family’s low income level and that the father has criminal history fourteen years
       ago. The Court is concerned that the Moore’s may not be financially able . . . to
       add two more children to their household due to their low income and since one
       of their own children is disabled and that takes a deep commitment from the
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       family. The home study did not include any mention of what type of services
       that will be provided to the juveniles and the Dean children’s therapist stated they
       will need long-term services.

               Montana Dean testified that he wants custody of the children but is not in
       a position to have custody of them. He lives with his mother in Toledo, Ohio,
       and makes $500.00 a week as an apprentice steel worker in Ohio. He said it may
       take two months to get stable housing. Montana has a criminal history. . . . The
       Court ordered ADHS to conduct a background check [on him]. . . . The Court
       also stated that if the Moore family is being pursued for custody, then Timothy
       Moore needs to come to Arkansas and meet with the children to develop a
       relationship and to understand their long-term counseling needs.

       A second permanency-planning order was entered in February 2015. The circuit

court determined the “goal of the case shall be adoption. Mother has not followed the case

plan. She recently attempted suicide and is not receiving any help with her mental health

issues.” The court also explained:

                The Father Montana Dean was not present at this hearing. His ICPC
       referral has been sent, but his criminal background checks have come back and
       he has extensive criminal convictions in his past. Among others, since 2008 he
       has been convicted on Disorderly Conduct, Menacing, Domestic violence against
       a family member, Reckless violation of a temporary protection order, and
       Resisting arrest. The caseworker testified Mr. Dean has not remained in touch
       with her since the last hearing. He contacted the referred therapist one time, but
       has not followed up since. The caseworker further testified that based on these
       issues, the Department will not recommend placing the juveniles with their father.

       In April 2015, DHS filed a petition for termination of parental rights against

Robinson and Dean, alleging several statutory grounds for termination were present, that

DHS was “seeking to clear the juveniles for adoption,” and that the children faced potential

harm if custody was returned to their parents. The court held a termination hearing in July

and August 2015; DHS abandoned its termination petition against Dean, but pursued the

petition against Robinson.



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        The circuit court entered an order terminating Robinson’s parental rights in

September 2015. The court found, among other things, that the testimony of adoption

specialist Monica Spencer was credible and that D.D. and S.D. “are highly adoptable.” It

reasoned that termination was in the children’s best interest because the children had

remained out of Robinson’s custody for seventeen months and that Robinson’s only contact

with the juveniles was at a 27 April 2015 family-therapy session. In finding that clear and

convincing evidence supported its decision to terminate Robinson’s parental rights, the

court wrote that Robinson’s “refusal to acknowledge her mental illness, her refusal to take

any prescribed medications, her arrest record, her continued bizarre claims and behaviors,

and her suicide attempt during the case” showed that she was an unfit parent. The court

explained that “although this is not the exclusive permanency planning option available, as

the father’s parental rights are not being terminated . . . the facts demonstrate how [D.D.

and S.D.] would be at risk of potential harm if returned to the mother.”

        Robinson has appealed the termination order “and all adverse rulings made therein.”

                                         II. Discussion

       An order forever terminating parental rights must be based on clear and convincing

evidence that termination is in the child’s best interest and a statutory ground for termination

exists. Ark. Code Ann. § 9-27-341(b)(3)(A)–(B) (Repl. 2015). “Best interest” includes

consideration of the likelihood that the juvenile will be adopted and the potential harm

caused by returning custody of the juvenile to the parent. Donley v. Ark. Dep’t of Human

Servs., 2014 Ark. App. 335, at 1.




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       We review cases involving the termination of parental rights de novo. Griffin v. Ark.

Dep’t of Health & Human Servs., 95 Ark. App. 322, 236 S.W.3d 570 (2006). While we

review the factual basis for terminating parental rights under a clearly erroneous standard,

no deference is given to the circuit court’s decision with regard to errors of law. Id.

       Arkansas Code Annotated section 9-27-341 is titled “Termination of Parental

Rights.” Subsection (a)(3) states:

                The intent of this section is to provide permanency in a juvenile’s life in
       all instances in which the return of a juvenile to the family home is contrary to
       the juvenile’s health, safety, or welfare and it appears from the evidence that a
       return to the family home cannot be accomplished in a reasonable period of time
       as viewed from the juvenile’s perspective.

Our court has interpreted this statute to allow termination of an unfit parent’s rights when

the children remain or return to the “family home” of a fit parent. See Ross v. Ark. Dep’t

of Human Servs., 2010 Ark. App. 660, 378 S.W.3d 253.

       Other cases have interpreted “family home” narrowly. For example, in Donley, a

mother argued that the circuit court should place her child permanently with her sister, who

had custody of her child’s younger sibling, instead of the court terminating her parental

rights. 2014 Ark. App. 335. In other words, the circuit court had a less drastic measure of

relative placement that could still fulfill the legislative goal of permanency for the child. But

we rejected this argument holding that the termination statute (Ark. Code Ann. § 9-27-

341) contains no preferential consideration for relative placement and that the termination

statute should not be read “in conjunction with other statutory provisions of the juvenile

code.” Id.




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       In Lively v. Arkansas Department of Human Services, we reversed a court’s order

terminating a father’s rights when the child remained in the mother’s custody and the case

closed. There, we wrote that the circuit court considered that the father’s “drug use, mental

instability, and criminal convictions posed a risk of harm to the children should they be

returned to his custody” but it “did not address whether termination (rather than a less-

drastic alternative, such as a no-contact order or supervised visitation) was in the children’s

best interest” given that the children benefited significantly from their father’s financial

support. 2015 Ark. App. 131, at 8–9, 456 S.W.3d 383, 389.

       In Crowley v. Arkansas Department of Human Services, we rejected a father’s argument

that permanency could be achieved through a no-contact order instead of terminating his

parental rights when the children were placed permanently with their mother. 2016 Ark.

App. 66. We reasoned that when a parent has subjected his children to violence and abuse,

termination of that parent’s rights fulfills the purpose of Ark. Code Ann. § 9-27-341(a)(3).

       Robinson does not challenge any statutory ground or the court’s prior finding that

her mental instability, delusions, and abandonment of the children constituted aggravated

circumstances.   She instead contends that termination is unnecessary and not in her

children’s best interest. According to Robinson, “the children were poised to be returned

to their father’s custody, and their mother, while suffering from mental illness, had not

harmed them, had been diligent in her efforts to maintain a relationship with them, and had

a very positive impact on the girls’ otherwise negative behavior when she had contact with

them.” Permanency for her children need not be achieved “by employing the draconian

approach of termination” but instead “should be handled as countless others like it are

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handled, through an order of visitation, or even an order of no contact, which could be

lifted at a later date.” She argues that the state’s termination of her parental rights does not

fulfill the purpose the General Assembly intended under Ark. Code Ann. § 9-27-341(a)(3).

       We affirm the circuit court’s decision that termination of Robinson’s parental rights

was in the children’s best interest and necessary to provide permanency for them.             While

Montana Dean’s parental rights were not terminated at the hearing, there was no certainty

that the children were going to be placed permanently with him. At the hearing’s close,

the court said, “I cannot do that [place the children with Dean] until I have a report, we

are ahead of ourselves, until I have a report from the therapist, I don’t know what’s going

on with these kids and that I know that dad—well, we are going, I am not going to do that

at this time.” Later it again said:

       The children can’t be monitored I know in another state, but, I do not know
       what shape the children are in, whether they are physically ready [to go] . . . I
       know there is going to have to be services in place for them before I can consider
       dad as a placement[.]. . . He is going to have to have a plan in place up in Toledo
       such as in counseling, baby sitting arrangements, et cetera. I think he is an
       appropriate placement. The only thing holding back right now other than if the
       children are ready to go is this home study. . . . [I]f there is a domestic battery,
       you never can be placed or do we know? . . . [W]e will just see where we are in
       four months. We are not going to make any promises to anybody about anything.

The court was actively considering how it might place the children safely in their father’s

care, but there was no guarantee that permanency would be achieved by that means.

       Robinson has no quarrel with the court’s finding that her children are “highly

adoptable” because she believes that “they will not need to be cleared for adoption in order

to achieve permanency.” She instead argues that she can help care for the children while

they are in their father’s custody. But it is not at all certain that the children would be

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placed in their father’s custody, and the court concluded that the children faced future harm

if Robinson’s rights were not terminated.

       Robinson’s therapist, Sharon Cummins, testified that Robinson faithfully attended

therapy every other week for nine months. But, importantly, Cummins agreed that

Robinson lacked insight and made no progress in recognizing the extent of her mental

illness. While Robinson testified that she had lived in the same shelter for eight months,

done hundreds of hours of community service, paid off large amounts of criminal fines, and

bought presents for the children, she did not have a stable home to which the children could

return. She was living in a temporary shelter at the time of termination. DHS could not

find her during periods of the case. She did not visit the children for long stretches of time

either. She started, but never finished, the court-ordered psychological examination and

parenting classes.    Her obsessions and/or hallucinations about celebrities continued

throughout the case, and she would not take medication prescribed for her bipolar

condition. Medical records were entered into evidence showing that Robinson had several

severe mental-health diagnoses and that she had been in and out of inpatient mental-health

facilities since she was a teenager.

       Robinson may not have intentionally harmed her children, and could act as a

competent parent at times, but overall she could not successfully engage in the case plan and

guarantee her children’s return. Her inability to recognize the dangers her mental illness

posed supports the circuit court’s conclusion of potential harm—meaning that there was no

way to know with sufficient confidence that D.D. and S.D. would be safe in Robinson’s

custody. See Rossie-Fonner v. Ark. Dep’t of Human Servs., 2012 Ark. App. 29, 388 S.W.3d

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38 (affirming termination where parent had a lifelong history of serious mental illness and

the nature of this illness was permanent and unpredictable and would therefore continue to

present a serious risk of harm to children). Therefore the circuit court’s conclusion that a

termination of Robinson’s parental rights was necessary and in her children’s best interest

was not clearly erroneous.

                                      III. Conclusion

       We affirm the termination of Robinson’s parental rights to D.D. and S.D.

       Affirmed.

       GLADWIN, C.J., and WHITEAKER, J., agree.

       Leah Lanford, Arkansas Public Defender Commission, for appellant.

       Jerald A. Sharum, County Legal Operations, for appellee.

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

children.




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