Cox v. Arkansas Department of Human Services

2015 Ark. App. 202, 462 S.W.3d 670, 2015 Ark. App. LEXIS 252
CourtCourt of Appeals of Arkansas
DecidedApril 1, 2015
DocketCV-14-1058
StatusPublished
Cited by9 cases

This text of 2015 Ark. App. 202 (Cox v. Arkansas Department of Human Services) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cox v. Arkansas Department of Human Services, 2015 Ark. App. 202, 462 S.W.3d 670, 2015 Ark. App. LEXIS 252 (Ark. Ct. App. 2015).

Opinion

ROBERT J. GLADWIN, Chief Judge

| Appellant James Cox appeals from the Garland County Circuit Court’s September 24, 2014 order terminating his parental rights to his children, K.C. and Z.C. Appellant argues that the termination of parental rights (TPR) was in contravention of Arkansas Code Annotated section 9-27-341(a)(3) (Supp. 2013) and was not in the children’s best interest. We affirm.

On March 16, 2014, the Arkansas Department of Human Services (ADHS) responded to a request for a safety assessment based on allegations that appellant provided alcohol to, and had sexual contact with, D.B. — a teenage girl with whom he stood in loco parentis. Appellant had been in a long-term relationship with D.B.’s mother, Amanda Weston, and had two children with her — K.C. and Z.C. ADHS entered into a safety agreement with Ms. Weston in which she was allowed to retain custody of the children if she did not allow appellant to [2have contact with them; however, on April 6, 2014, ADHS received information that Ms. Weston was not abiding by the agreement. As a result, ADHS placed an emergency hold on K.C. and Z.C., along with Ms. Weston’s two children from a prior relationship.' The circuit court entered an order of emergency custody, as well as a subsequent order finding probable cause to maintain the children in ADHS custody, and appellant was referred for a psychological evaluation pending the adjudication hearing.

Appellant completed the psychological evaluation with forensic psychologist Dr. George DeRoeck on April 29, 2014. Appellant also completed six weekly sessions with therapist Lee Lowder, to whom ADHS referred appellant for counseling, and Mr. Lowder issued a narrative report just prior to the adjudication hearing.

On June 25, 2014, the circuit court held an adjudication hearing and found that the children were dependent-neglected due, in part, to appellant’s sexual abuse of D.B. The circuit court further found aggravated circumstances based on that abuse, and applied the aggravated-circumstances findings to K.C. and Z.C. as well, based on their being half-siblings of D.B., whose life was endangered by appellant when he provided sufficient alcohol to D.B. that her blood-alcohol level was .29 at the time of the incident. The circuit court allowed appellant supervised visitation with K.C. and Z.C. only, with the length of the visits to be within the discretion of the children’s therapist, David Todd. The goal of the case was reunification with Ms. Weston, with ADHS to provide appellant with services.

On July 1, 2014, before the adjudication order was entered, ADHS filed a motion for reconsideration, seeking to set aside a portion of the adjudication order regarding appellant’s ^visitation. ADHS asserted that Mr. Todd, who testified at the adjudication hearing, was not aware that the allegations surrounding the incident with D.B. had been substantiated, that since the adjudication, appellant had been formally charged with sexual assault, and that the caseworker and the therapist had recommended visitation only because they thought the goal would be reunification with both parents. ADHS further stated that it would be seeking termination of appellant’s parental rights because the goal was now “reunification with the mother.”

Appellant’s counsel filed a response, and the circuit court held a hearing on July 9, 2014. The circuit court entered an order rescinding appellant’s right to supervised visitation with his children and denied an oral motion made by appellant’s counsel to appoint a separate attorney ad litem for K.C. and Z.C.

On July 18, 2014, ADHS filed a formal TPR petition as to appellant, specifically asserting that the termination statute allowed termination of only one parent’s parental rights. ADHS alleged that the potential harm to the children if they were returned to appellant’s custody was a risk of neglect and abuse — sexual and physical — based on inadequate supervision because of alcohol consumption.

On July 21, 2014, appellant’s counsel filed a motion to reconsider the order rescinding appellant’s visitation. The record does not reflect a written order addressing appellant’s motion.

On September 24, 2014, the circuit court held a hearing on ADHS’s TPR petition. At that hearing, Mr. Todd testified and acknowledged that he had never talked to appellant, Reven though Dr. DeRoeck had recommended that supervised visitation be implemented to assess the quality of the interaction between appellant and his children. Mr. Todd also noted that both children loved them father and talked about him affectionately, although they were both fearful of the situation that existed when their parents were together. Mr. Todd stopped short of stating that he would recommend TPR, although he stated that there was always a concern that appellant’s behavior toward D.B. could be repeated in the future with his own children. On cross-examination, Mr. Todd admitted that there were no allegations of any abuse toward appellant’s own children, that the domestic violence was between appellant and Ms. Weston, and that it would be speculative to say how the children would be influenced if appellant could have visitation with them separate and apart from a relationship with Ms. Weston.

Appellant’s therapist, Mr. Lowder, who had seen appellant weekly for four months at ADHS’s request, opined that appellant did not pose a threat to his children. Mr. Lowder stated that while appellant used extremely poor judgment in regard to the incident with D.B. that initiated ADHS’s involvement, he believed that the incident was due to appellant’s “intemperate use of alcohol,” and he did not believe appellant was a predator.

The only other witness to testify was ADHS caseworker Jamie Moran who recommended TPR because of the potential harm of sexual abuse to appellant’s own children or the risk of him providing them with alcohol. She further stated that appellant did not seem to think that what happened was a “big deal,” but this testimony was contradicted by Mr. Lowder.

|sThe circuit court granted ADHS’s TPR petition. While the circuit court specifically noted that Mr. Lowder’s testimony was credible, it found that it was in the best interest of the children to terminate appellant’s parental rights, even though the goal was reunification with Ms. Weston, because of appellant’s “reaction to therapy and lack of judgment and insight as to his actions of abuse and neglect ..., [his] potential to abuse alcohol, and domestic violence in the home.... ” On September 24, 2014, the circuit court entered an order terminating the parental rights of appellant to K.C. and Z.C. Appellant filed his timely notice of appeal on October 1, 2014.

The purpose of terminating a parent’s rights to his or her child is to provide permanency in the child’s life when return to the family home “cannot be accomplished in a reasonable period of time as viewed from the' juvenile’s perspective.” Ark. Code Ann. § 9-27-341(a)(3). A court may order TPR if it finds there is an “appropriate placement plan” for the child, section 9 — 27—341(b)(1)(A), and further finds by clear and convincing evidence that TPR is in the best interest of the child, taking into consideration the likelihood of adoption and the potential harm to the health and safety of the child that would be caused by returning him or her to the custody of the parent. Ark. Code Ann. § 9-27-341(b)(3)(A).

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Cite This Page — Counsel Stack

Bluebook (online)
2015 Ark. App. 202, 462 S.W.3d 670, 2015 Ark. App. LEXIS 252, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cox-v-arkansas-department-of-human-services-arkctapp-2015.