Davis v. Arkansas Department of Human Services

375 S.W.3d 721, 2010 Ark. App. 469, 2010 Ark. App. LEXIS 502
CourtCourt of Appeals of Arkansas
DecidedJune 2, 2010
DocketNo. CA 09-702
StatusPublished
Cited by11 cases

This text of 375 S.W.3d 721 (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, 375 S.W.3d 721, 2010 Ark. App. 469, 2010 Ark. App. LEXIS 502 (Ark. Ct. App. 2010).

Opinion

M. MICHAEL KINARD, Judge.

11 Karen Davis appeals from the order of the Pulaski County Circuit Court terminating her parental rights to five of her children. This is the second time this case has been before us. Counsel for appellant initially filed a no-merit brief and motion to withdraw pursuant to Linker-Flores v. Ark. Dep’t of Human Servs., 359 Ark. 131, 194 S.W.3d 739 (2004). This court ordered that the case be rebriefed because counsel for appellant failed to discuss several rulings that were adverse to appellant. See Davis v. Ark. Dep’t of Human Servs., 2010 Ark. App. 88, 2010 WL 307966. The case is now back before this court in merit form. On appeal, appellant argues that the trial court erred by refusing to allow more time for the maternal grandmother to remedy deficiencies identified in her home study or to explore less restrictive placement of the children through mediation. Appellant also argues that the decision of the circuit court to ^terminate her parental rights was not in her children’s best interests. We affirm the order of the trial court terminating appellant’s parental rights.

On November 27, 2007, the Arkansas Department of Human Services (DHS) filed a petition for ex parte emergency custody and dependency/neglect. In the affidavits that accompanied the petition, the DHS family services workers stated that a protective services case was open on the family in Pulaski County. Appellant had a history of drug use. In November 2007, appellant was a patient in the detox program at Arkansas Cares. On or about November 24, 2007, appellant left the Arkansas Cares facility with three of her children. The other two were visiting their paternal grandmother in Texas. The three children were transported back to the facility by Arkansas Cares staff and appellant later returned. Later that afternoon, appellant again left the facility, this time without the children. DHS exercised a seventy-two-hour hold on the three children who were present on November 24, 2007, and a second hold on the two remaining children when they returned to Arkansas on November 27, 2007. On December 4, 2007, the circuit court entered an order finding that DHS had probable cause to take the children into custody. The parties stipulated that the facts contained in the affidavits were true, and the circuit court entered an order finding that the children were dependent-neglected on January 17, 2008. That determination was based upon abandonment and parental unfitness by appellant.

On January 28, 2008, the trial court entered an order stating that the goal of the case was reunification, with a concurrent goal of permanent custody with a relative. Appellant was ^ordered to do the following: 1) participate in individual counseling; 2) refrain from the use of illegal drugs or alcohol; 3) enter and complete in-patient treatment for substance abuse; 4) submit to random drug screens; 5) attend AA/NA meetings; 6) maintain stable housing and employment. In a review order entered April 17, 2008, the circuit court continued custody of the children with DHS and stated that appellant had failed to comply with the case plan. The court noted that appellant admitted to continued drug use. The court determined that the children’s father had partially complied with the case plan. Appellant was again ordered to enter and complete residential drug treatment. Following permanency planning hearings held on October 1, 2008, and November 4, 2008, the circuit court entered an order on November 24, 2008, that continued custody of the children with DHS and changed the goal of the case to termination of parental rights and adoption. The court found that both parents had partially complied with the case plan. At the hearing, appellant testified to continued drug use and the father tested positive for drugs. Both parents stated that they wanted the children’s grandmothers to have custody, but the court found that the permanency goal of obtaining a permanent custodian with either of the grandmothers was not appropriate.

On December 10, 2008, DHS filed a petition for termination of parental rights. In the petition, DHS alleged that the children had been adjudicated dependent-neglected and continued out of the custody of appellant for twelve months and, despite a meaningful effort by DHS to rehabilitate the parent and correct the conditions that caused the removal, those conditions had not been remedied by appellant. On February 20, 2009, counsel for appellant 1„ filed a motion for continuance, for mediation, and to shorten response time. The court denied the motion but continued the hearing because the father’s attorney could not attend.

At the beginning of the termination hearing, the court dismissed the father from the petition because the children were not removed from his custody and DHS failed to plead a ground upon which his rights could be terminated. During the hearing, an adoption specialist for DHS testified that the children were adoptable, although she stated that the two oldest children did not want to be adopted. Tabitha Watson, the family-services worker assigned to the case, testified that appellant tested positive for cocaine on December 19, 2008, and failed to give DHS any indication of where she was living or her employment status. According to Watson, appellant was offered weekly visitation, but she only visited the children seven times between December 12, 2007, and February 20, 2009. Watson further stated that the home study for the maternal grandmother, Becki McConnell, was denied because her husband had a prior allegation of child abuse and stated in the study that he did not want the children to live in his home. Watson testified that DHS was also concerned about McConnell’s financial stability if she divorced her husband and he moved out of the home. According to Watson, McConnell was asked in May 2008 to begin the home study process, but she did not give approval to begin the process until August 2008. Watson did give an opinion, however, that McConnell’s home would be the best place for the children if she were able to work out the problems with the home. DHS’s recommendation was that appellant’s parental rights be terminated and that the children be placed for adoption. Watson | stestified that she did not believe that splitting the children up would be in their best interest. Watson stated that the oldest child wanted to live with a family member and stated that he did not “feel welcome” living with strangers. Darryl Capps, the Court Appointed Special Advocates (CASA) supervisor, testified that it was CASA’s recommendation to terminate parental rights.

Appellant testified that she was living in a motel room. She stated that she believed the best place for her children to be was with her mother. She further testified that she had not visited the children because she knew she would be high on drugs. Appellant stated that her mother told her that she had filed for divorce from her husband, but appellant did not know the exact date of the filing.

At the conclusion of the hearing, the circuit court found that the grounds alleged for termination had been proven by clear and convincing evidence and granted the petition. On April 7, 2009, the circuit court entered a written order granting the petition to terminate appellant’s parental rights. Appellant filed a timely notice of appeal on April 16, 2009.

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Bluebook (online)
375 S.W.3d 721, 2010 Ark. App. 469, 2010 Ark. App. LEXIS 502, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davis-v-arkansas-department-of-human-services-arkctapp-2010.