Davis v. Arkansas Department of Human Services

370 S.W.3d 283, 2009 Ark. App. 815, 2009 WL 4338931, 2009 Ark. App. LEXIS 973
CourtCourt of Appeals of Arkansas
DecidedDecember 2, 2009
DocketNo. CA 09-734
StatusPublished
Cited by13 cases

This text of 370 S.W.3d 283 (Davis 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
Davis v. Arkansas Department of Human Services, 370 S.W.3d 283, 2009 Ark. App. 815, 2009 WL 4338931, 2009 Ark. App. LEXIS 973 (Ark. Ct. App. 2009).

Opinion

WAYMOND M. BROWN, Judge.

liThis is a termination-of-parental rights appeal brought by Vertís Davis. On April 17, 2009, the Pulaski County Circuit Court terminated her parental rights to D.W., born March 13, 2000, and M.L., born October 28, 2004. Appellant’s attorney has filed a motion to withdraw pursuant to Linker-Flores v. Arkansas Department of Human Services, 359 Ark. 131, 194 S.W.3d 739 (2004), asserting that there are no issues of arguable merit to support the appeal. Under Rule 6 — 9(i)(l) of the Arkansas Rules of the Supreme Court and Court of Appeals, counsel’s motion is accompanied by an abstract, addendum, and brief listing all adverse rulings made at the termination hearing and explaining why there is no meritorious ground for reversal, including a discussion of the sufficiency of the evidence to support the termination order. The clerk of this court sent a copy of counsel’s motion and brief to appellant, informing |2her that she had the right to file pro se points for reversal. See Ark. Sup. Ct. R. 6-9(i)(3). Appellant filed pro se points for reversal on August 26, 2009.

DHS filed a dependency-neglect petition on March 5, 2007. The supporting affidavit stated that D.W., who is autistic and has ADHD, came to school in what appeared to be the same diaper in which he had left school the day before. There was a bowel movement in the diaper; the child smelled as if he had been soaked in urine all night; and there were sores and a rash on his diaper area. When a DHS worker interviewed appellant on February 14, 2007, appellant’s home smelled strongly of urine and had no gas or running water. DHS implemented a safety plan for appellant and the children to stay with appellant’s mother, Vertís Brown, when it was cold. Although the gas was turned on by February 16, 2007, the water was still off on March 1, 2007. On May 22, 2007, DHS implemented another safety plan for the children to live with their grandmother until appellant could find adequate housing (with DHS’s help). On June 1, 2007, the circuit court accepted the parties’ stipulation that the children were dependent-neglected because of environmental neglect. The court directed that the children would remain in appellant’s legal custody but that, until she obtained appropriate housing, they would live with Mrs. Brown, pursuant to the safety plan.

DHS moved for an emergency change of custody on September 4, 2007. In the attached affidavit, the DHS worker stated that appellant’s housing referral was approved on June 18, 2007; on June 21, 2007, however, appellant went to jail for third-degree domestic battery after an altercation with Nathan Love, M.L.’s putative father. Appellant was released |sfrom jail with a no-contact order. When the DHS worker saw appellant walking home from jail and gave her a ride home, appellant told the worker that the children were staying with their grandmother only “off and on” because she had breast cancer. On August 27, 2007, DHS held a second staffing with appellant, who admitted that the children and Mr. Love were living with her. The water at appellant’s home was not yet turned on. On August 31, 2007, DHS placed a seventy-two-hour hold on the children because appellant had violated the safety plan. The circuit court ordered an emergency change of custody on September 5, 2007.

On September 24, 2007, the circuit court entered a probable-cause order and gave appellant weekly supervised visitation. The court held a review hearing on October 3, 2007. The goal was reunification. The court stated that appellant had minimally complied with the case plan and court orders; she had missed her appointment for the psychological evaluation; had not yet attended parenting classes; and was still attempting to obtain housing. The court directed appellant to submit to a psychological evaluation; to complete parenting classes; to obtain and maintain appropriate and stable housing and income; and to comply with the district court’s orders in the domestic-violence case. The court said that, if all parties agreed at the scheduled November 2007 staffing, appellant’s visitation could be increased. On February 7, 2008, the court stated that the “most recent order” had placed the children in appellant’s custody but that it was contrary to the children’s welfare to remain with appellant.

A review hearing was held on March 20, 2008. The court stated that the case plan would remain reunification, with a concurrent plan of guardianship and permanent custody, [4and noted that appellant had partially complied with the case plan and court orders, although she had not obtained stable housing.

The court held a permanency-planning hearing on August 20, 2008. It continued the goal of reunification, finding that appellant was complying with the case plan and court orders. The court noted that appellant had completed parenting classes; had completed her psychological evaluation; and had appropriate housing; the only negative factor, however, was her positive drug screen for marijuana that week. The court stated that she could have weekly visitation after testing negative on three consecutive drug screens.

On December 12, 2008, DHS filed a motion to clarify the court’s oral order at the fifteen-month permanency-planning hearing held on November 6, 2008, where the court ordered appellant not to use marijuana when the children were in the home. DHS stated that, on November 17, 2008, appellant tested positive for marijuana, and admitted that she had used it on November 11, 2008. DHS asked the court to clarify what effect appellant’s positive drug test and admission would have on her visitation.

DHS filed a petition to terminate appellant’s parental rights on February 19, 2009. It alleged that other factors or issues had arisen subsequent to the filing of the original petition for dependency-neglect that demonstrated that the return of the juveniles to the custody of appellant was contrary to their health, safety, or welfare, and that, despite the offer of appropriate family services, appellant had manifested the incapacity or indifference to remedy the subsequent issues or factors. See Ark.Code Ann. § 9-27-341(b)(3)(B)(vn)(a) (Supp.2009). |sDHS stated that appellant’s drug use came to light after the filing of the original petition and, although she had complied with the case plan and court orders regarding stable and appropriate housing, she had continued to use marijuana, which affected her ability to be a parent, and she had allowed her sister and her sister’s children to live with her, in violation of the court’s order. DHS also listed another ground, that the children had been adjudicated dependent-neglected and had continued out of appellant’s custody for twelve months and, despite a meaningful effort by the department to rehabilitate appellant and correct the conditions that had caused removal, those conditions had not been remedied. See Ark.Code Ann. § 9-27-341(b)(3)(B)(i)(a).

On February 6, 2009, appellant tested positive for cocaine and THC. She tested positive for THC on February 13, 2009, and on February 18, 2009. Appellant tested negative for all drugs on March 6, 2009. Even though appellant said that she was clean, she tested positive for THC on March 13, 2009. . Appellant tested positive for cannabinoids on March 19, 2009. On April 17, 2009 (the date of the termination hearing), appellant tested positive for THC, even though she denied using marijuana.

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Bluebook (online)
370 S.W.3d 283, 2009 Ark. App. 815, 2009 WL 4338931, 2009 Ark. App. LEXIS 973, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davis-v-arkansas-department-of-human-services-arkctapp-2009.