The opinion
Cite as 2022 Ark. App. 356
ARKANSAS COURT OF APPEALS
DIVISION II
No. CV-22-163
Opinion Delivered September 28, 2022
SHEILA KING APPEAL FROM THE SEBASTIAN
APPELLANT COUNTY CIRCUIT COURT,
FORT SMITH DISTRICT
V. [NO. 66FJV-20-160]
ARKANSAS DEPARTMENT OF HONORABLE LEIGH ZUERKER,
HUMAN SERVICES AND MINOR JUDGE
CHILDREN
APPELLEES AFFIRMED
BRANDON J. HARRISON, Chief Judge
Sheila King appeals the termination of her parental rights to her three children. She
asserts that the expert witness provided by the Arkansas Department of Human Services
(DHS) did not provide the requisite testimony pursuant to the Indian Child Welfare Act
(ICWA); that it was a conflict of interest for DHS to offer one of its own employees as the
ICWA expert; and that the circuit court’s failure to ensure compliance with ICWA has put
the children’s permanency at risk, rendering termination not in the children’s best interest.
We affirm.
On 23 April 2020, DHS petitioned for emergency custody of King’s three adopted
children: PK, age 15; JK, age 8; and RK, age 7. 1 The attached affidavit explained that DHS
1
The children’s adoptive father, Jacob King, was incarcerated at the time of removal.
He relinquished his parental rights in September 2020 and is not a party to this appeal.
1
had exercised an emergency seventy-two-hour hold on the children after responding to a
hotline call alleging abuse, neglect, and pornography exposure. DHS discovered that the
children had been living with a sex offender (King’s adult son, Brian Trowbridge) and that
the home had no food, no hot water, and no air conditioning. 2 The affidavit noted the case
worker’s belief that the ICWA did not apply to the petition.
The circuit court granted emergency custody to DHS and later found probable cause
to continue custody with DHS. In July 2020, the circuit court adjudicated the children
dependent-neglected “based on parental unfitness due to the mother’s drug abuse.” The
court reviewed the case in October 2020 and found that King had partially complied with
the case plan, but in May 2021, the court changed the goal of the case to adoption following
termination.
DHS petitioned to terminate King’s parental rights in July 2021. From the record,
it appears that in September 2021, King alleged for the first time that the children are eligible
for membership in the Choctaw Nation through their biological mother. Consequently,
DHS notified the Choctaw Nation and requested that it confirm the Indian status of the
children. In response, the Choctaw Nation Department of Children and Family Services
(CFS) clarified that PK did not qualify as an “Indian Child” under the federal ICWA;
however, the child’s maternal grandmother is a member of the Choctaw Nation of
2
Trowbridge lived in the home with his six-year-old daughter, LT, and DHS
received a report that Trowbridge had watched pornography with LT and that he held her
hand and masturbated while watching pornography. LT was also removed from the home
and is the subject of a separate dependency-neglect proceeding.
2
Oklahoma, and the biological mother is eligible for membership along with her children. 3
CFS advised the “parent or legal custodian” to complete the requisite membership
paperwork for the child and stated that “[o]nce either the biological mother or the child is
enrolled, the child will qualify as an ‘Indian Child.’”
The circuit court convened a termination hearing on 16 November 2021. At the
outset, the court and counsel discussed whether ICWA should apply. Shelee Long, DHS
counsel, stated that it was her understanding that King had not enrolled the children and
that the biological mother was not enrolled, so the children do not meet the definition of
Indian children, and ICWA does not apply. Sara Goodrum, King’s counsel, relayed
information in an email from CFS to King that explained what King would need to do to
enroll the children herself. It was Goodrum’s understanding that those things had not been
done.
The circuit court reasoned that based on CFS’s response, it could make a finding on
ICWA’s applicability only as to PK. The court opined that it did not appear the hearing
could move forward unless DHS “want[ed] to move forward as if all three children are
Indian children[.]” Long indicated that DHS was prepared to do just that, but the court
then questioned whether the case could move forward without the court making a specific
finding that ICWA applies. Long stated that she had reviewed the statutes and found no
requirement for a specific finding that ICWA applies. The court decided that because it
3
It is unclear why the response references only PK.
3
could not make a clear determination whether ICWA applies, it would impose the higher
burden of proof required by ICWA. 4
At the hearing, DHS offered the testimony of Mindy Tuck-Duty, who is a DHS
supervisor, a member of the Cherokee Nation, and eligible for dual citizenship through the
Choctaw Nation. She confirmed that she is knowledgeable about tribal customs pertaining
to child rearing and practices and that she had previously been qualified as an expert witness
for purposes of ICWA in other cases. The parties stipulated that Tuck-Duty is an expert in
ICWA, the court designated her as one, and she testified to the following.
Tuck-Duty did not work on the King case but familiarized herself with the facts by
reviewing DHS and court records. She opined that DHS had made active efforts to prevent
the breakup of the Indian family; those active efforts include a preremoval consult, an
appropriate case plan, and a case reassessment every three months in an effort to keep the
progress moving forward. When asked whether returning custody to King is likely to result
in serious emotional or physical damage to the children, Tuck-Duty said that there had “not
been enough significant progress showing that she’s . . . taken steps to alleviate the issues
that brought the kids in care.” She specifically noted that King’s adult son still lived with
4
We have some doubt that the ICWA applies here. An Indian child is defined as
“any unmarried person who is under age eighteen and is either (a) a member of an Indian
tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a
member of an Indian tribe.” 25 U.S.C. § 1903(4). The doubt arises because while the
biological mother and her children seem eligible for membership, there is no evidence in the
record that either she or the children have been properly enrolled as members of the Choctaw
Nation. Regardless, the circuit court applied the ICWA standards out of an abundance of
caution on an unclear record, the parties agreed to an expert, the expert testified, a decision
was reached, and we will review that decision. But even if the ICWA should not have
applied, we would affirm the termination without hesitation on this record.
4
her and that “bringing the children back into the home with the offender is detrimental to
their not just physical health, but also, their mental health.”
On cross-examination, Tuck-Duty reiterated that active efforts had been made to
help King with her drug problems. Tuck-Duty explained that two different case workers
had made referrals for King and that “[a]t some point, the mother has to be accountable for
her actions as well[.]”
In its termination order, the circuit court found that DHS had proved beyond a
reasonable doubt that statutory grounds for termination exist and that termination of parental
rights is in the children’s best interest. The court found that the children would be subjected
to substantial risk of harm if returned to King’s custody, specifically “serious physical and
emotional harm . . . due to [King’s] ongoing drug use, her continued instability, and her
reunification with Joseph Lasiter Jr.” (Lasiter is King’s current husband and has previously
been arrested for domestic assault with King as the victim.) And finally, the court found
that DHS had made “active efforts to prevent the breakup of the Indian family. These
reasonable and active efforts were unsuccessful. Thus, despite these efforts and services, the
juveniles cannot and should not be returned to the parents.” King has timely appealed the
circuit court’s order.
We review termination-of-parental-rights cases de novo. Hune v. Ark. Dep’t of Hum.
Servs., 2010 Ark. App. 543. 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. Ark. Code Ann. § 9-27-
341 (Supp. 2021); Kohlman v. Ark. Dep’t of Hum. Servs., 2018 Ark. App. 164, 544 S.W.3d
595. A best-interest finding under the Arkansas Juvenile Code must include consideration
5
of two factors: the likelihood of adoption and potential harm to the child if returned to the
parents’ custody. Ark. Code Ann. § 9-27-341(b)(3)(A)(i) & (ii). Potential harm must be
viewed in a forward-looking manner and in broad terms, including the harm the child
suffers from the lack of stability of a permanent home. Wallace v. Ark. Dep’t of Hum. Servs.,
2015 Ark. App. 481, 470 S.W.3d 286.
According to the ICWA, the party seeking to terminate parental rights shall satisfy
the circuit court that active efforts have been made to provide remedial services and
rehabilitative programs designed to prevent the breakup of the Indian family and that these
efforts have proved unsuccessful. 25 U.S.C. § 1912(d). Moreover, no termination of
parental rights may be ordered in such a proceeding in the absence of a determination,
supported by evidence beyond a reasonable doubt, including testimony of qualified expert
witnesses, that the continued custody of the child by the parent is likely to result in serious
emotional or physical damage to the child. 25 U.S.C. § 1912(f). According to regulations
issued by the Bureau of Indian Affairs, the State’s “evidence must show a causal relationship
between the particular conditions in the home and the likelihood that continued custody of
the child will result in serious emotional or physical damage to the particular child who is
the subject of the child-custody proceeding.” 25 C.F.R. § 23.121(c) (2022). Without
establishing this causal relationship, “evidence that shows only the existence of community
or family . . . substance abuse or nonconforming social behavior” will not “by itself” prove
beyond a reasonable doubt that the likelihood required by ICWA exists. 25 C.F.R. §
23.121(d).
6
Despite this heightened standard in the circuit court, this court’s review is still de
novo, and we will not reverse the circuit court’s ruling unless its findings are clearly
erroneous. Holmes v. Ark. Dep’t of Hum. Servs., 2016 Ark. App. 495, 505 S.W.3d 730. A
finding is clearly erroneous when, although there is evidence to support it, the reviewing
court on the entire evidence is left with a definite and firm conviction that a mistake has
been made. Sharks v. Ark. Dep’t of Hum. Servs., 2016 Ark. App. 435, 502 S.W.3d 569. In
determining whether a finding is clearly erroneous, we give due deference to the circuit
court’s opportunity to judge the witnesses’ credibility. Bryant v. Ark. Dep’t of Hum. Servs.,
2018 Ark. App. 375, 554 S.W.3d 295.
King first says that the circuit court erred in its “likelihood of harm” finding because
Tuck-Duty failed to make a causal connection between the conditions in the home and the
likelihood that each particular child will suffer serious emotional or physical harm if returned
to her. Tuck-Duty’s only familiarity with the case and the basis for her “expert” opinion
came from reading the case file. King notes that the affidavit attached to the emergency
petition did not note any sexual abuse or contact between the adult son and the “particular”
children who are “the subject of the child-custody proceeding,” and Tuck-Duty did not
address how there was a causal relationship between Trowbridge and these children that
would warrant termination of parental rights. King acknowledges that she did not raise this
argument below but contends that it is a sufficiency-of-the-evidence issue that can be raised
for the first time on appeal.
The record has ample evidence to support a finding beyond a reasonable doubt that
continued custody with King was likely to result in serious emotional or physical damage
7
to the children. King failed to complete any part of the case plan, she continued to use
illegal drugs, she did not consistently visit the children, and at the time of the termination
hearing, she was still living with Trowbridge, a sex offender, and with a new husband, who
had been charged with domestic abuse. As to King’s argument that Tuck-Duty was required
to specifically address each child in her testimony and make specific statements about how
each child would be harmed if returned to the home, this court has previously addressed
and rejected this argument.
In Garris v. Arkansas Department of Human Services, 2021 Ark. App. 118, 619 S.W.3d
67, Rosie Garris appealed the termination of her parental rights and argued that the circuit
court had not complied with the ICWA. Tuck-Duty also served as the expert witness in
Garris, and Garris argued that Tuck-Duty had not specifically testified that the child would
likely suffer serious physical or emotional damage if returned to her custody. This court
held,
Rosie’s argument misses the mark because it focuses on whether Tuck-
Duty used the exact language of the statute. The question is not whether the
ICWA expert witness used any magic words in describing the risk posed by
returning the child to the parent but whether the court had sufficient evidence
including, but not limited to, Tuck-Duty’s testimony to support such a
finding.
Id. at 12, 619 S.W.3d at 75–76. In the present case, Tuck-Duty testified that the children
were likely to suffer serious physical or emotional damage if returned to King because she
failed to comply with any portion of the case plan and continued to live with inappropriate
individuals who are a threat to her children. She was not required to recite this information
for each child individually. We hold that in light of the evidence presented and our previous
8
disposition of this argument in Garris, King’s assertions on this point present no basis for
reversal.
For her second point, King asserts that it was a conflict of interest for DHS to offer
its own employee as the Indian expert to prove that termination was appropriate under
ICWA. She argues that Tuck-Duty’s role as an expert witness in this case was especially
egregious because she “is a supervisor in the same county, and thus the same DHS office,
where the case was being handled. This means that [she] had a close working relationship,
and likely a personal camaraderie, with the staff assigned to this case—the same staff seeking
the termination order.”
This argument was also presented in Garris, and this court declined to address it
because it was not preserved. The Garris court explained that challenges to the qualification
of an ICWA expert witness are evidentiary issues that require preservation and not
sufficiency-of-the-evidence issues that do not require preservation. This court held,
Rosie also argues that Tuck-Duty should have been disqualified as an
ICWA expert witness because she serves as a DCFS supervisor, which Rosie
claims is a conflict of interest. . . . As with Rosie’s previous argument, to the
extent that she frames this issue as an evidentiary challenge to Tuck-Duty’s
qualification as an expert witness, her argument has not been preserved for
our review because she failed to raise it below. To the extent that Rosie is
challenging Tuck-Duty’s credibility due to her employment with DCFS, we
must again give deference to the opportunity of the circuit court to judge the
credibility of witnesses.
Garris, 2021 Ark. App. 118, at 11, 619 S.W.3d at 75. While King asks this court to
reconsider our holding in Garris, we decline to do so. First, the argument is not preserved;
and second, King stipulated to Tuck-Duty’s status as an ICWA expert witness below.
9
For her final point, King argues that the circuit court’s failure to comply with the
ICWA has disrupted the goal of permanency for the children and rendered termination not
in their best interest. Again, this contention was addressed and rejected in Garris:
Rosie also contends that, based on the errors alleged above, DHS failed
to meet the statutory requirements for termination pursuant to the ICWA and
that, therefore, CG’s permanency is at risk because she cannot be adopted. In
support of this argument, Rosie cites several cases from other jurisdictions in
which an adoption proceeding following a termination order governed by the
ICWA was disrupted because the prior termination proceeding was found to
have not complied with the ICWA. Rosie’s argument fails because she asserts
no additional allegations of reversible error than those already addressed and
rejected above. Because we have found no reversible error as to any of
Rosie’s previous points on appeal, this argument lacks merit.
Garris, 2021 Ark. App. 118, at 11, 619 S.W.3d at 75. Having found no reversible error in
the arguments on points one and two, and given our precedent in Garris, we find no
reversible error on this point either.
Affirmed.
ABRAMSON and HIXSON, JJ., agree.
Leah Lanford, Arkansas Commission for Parent Counsel, for appellant.
Ellen K. Howard, Ark. Dep’t of Human Services, Office of Chief Counsel, for
appellee.
Dana McClain, attorney ad litem for minor children.
10