Fenstermacher v. Arkansas Department of Human Services

426 S.W.3d 483, 2013 Ark. App. 88, 2013 WL 529857, 2013 Ark. App. LEXIS 94
CourtCourt of Appeals of Arkansas
DecidedFebruary 13, 2013
DocketNo. CA 12-710
StatusPublished
Cited by22 cases

This text of 426 S.W.3d 483 (Fenstermacher 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
Fenstermacher v. Arkansas Department of Human Services, 426 S.W.3d 483, 2013 Ark. App. 88, 2013 WL 529857, 2013 Ark. App. LEXIS 94 (Ark. Ct. App. 2013).

Opinion

RITA W. GRUBER, Judge.

|,Appellant Larry Fenstermacher’s parental rights to his three daughters were terminated by order filed May 31, 2012, in Crawford County Circuit Court.1 He contends on appeal that there was insufficient evidence to support the court’s finding of grounds for termination. Although we agree that there is insufficient evidence to support the statutory ground stated in the court’s order, the court’s decision terminating appellant’s parental rights was not clearly erroneous under an alternate ground alleged in the termination petition, Therefore, we affirm,

^ Pac^s & Procedural History

The case began on August 25, 2010, when the Arkansas Department of Human ^Services (DHS) removed appellant’s three children — H.F., born July 23, 2003; S.F., born January 1, 2004; and N.F., born March 29, 2006 — from their mother’s custody. Appellant did not live with the children and their mother. The removal occurred after the Van Burén Police Department investigated a call that a three-year-old child was playing in a busy street alone. When the police arrived and attempted to ensure the child’s safety, they discovered that the child’s home contained open wiring, falling ceilings, clothing on the floor, dirty diapers, trash strewn throughout the home, and dirty dishes and rotting food on the counters. The police called DHS, which took appellant’s three children and four more of Ms. Huddle-ston-Clifton’s children into custody. The DHS worker noticed that there was little food in the house, that there were roaches in the kitchen, and that the children were extremely dirty and unkempt. Ms. Hud-dleston-Clifton tested positive for marijuana and admitted to its use.

The court entered an order for emergency custody on August 30, 2010, and found that probable cause to support removal existed in its probable-cause order entered on September 2, 2010. The court adjudicated the children dependent-neglected on September 30, 2010, and ordered that custody should be continued with DHS, stating the goal of reunification. In a review order entered on May 26, 2011, the court ordered appellant to

Attend and complete parenting classes; Submit to a drug and alcohol assessment and follow all recommendations;
Submit to random drug screens;
Obtain and maintain stable and gainful employment;
Participate in individual counseling as recommended by counselor or therapist; Participate in family counseling as recommended by counselor or therapist; and Comply with the case plan.

_jjThe court also found that DHS had made reasonable efforts to provide family services to achieve the goal of reunification. In a permanency-planning order entered on August 4, 2011, the court changed the goal to termination/adoption with respect to the children’s mother but stated that “the motion to change the goal to adoption as to ■ the fathers shall be taken under advisement at this time.” The court terminated Ms. Huddleston-Clifton’s parental rights in January 2012.

On March 5, 2012, DHS filed a petition to terminate appellant’s parental rights, alleging two statutory grounds: (1) the children had been adjudicated dependent-neglected and had continued to be out of the parent’s custody for twelve months and, despite a meaningful effort by DHS to rehabilitate the parent and correct the conditions that caused removal, those conditions had not been remedied; and (2) other factors arose subsequent to the filing of the original petition that demonstrate that return of the children to the parent’s custody is contrary to their health, safety, or welfare and that, despite the offer of appropriate family services, the parent has manifested the incapacity or indifference to remedy the subsequent factors or rehabilitate the circumstances that prevent return of the children to his custody. See Ark.Code Ann. § 9-27-341(b)(3)(B)(i), (vii) (Supp.2011).

II. Termination Hearing

At the termination hearing, Debbie Williams, the DHS family-service worker on this case, testified that the three girls had been in therapeutic care and were doing well. She said that H.F. had a diagnosis of “post-traumatic-stress syndrome, ADHD, neglect of a child, parent/child relationships”; N.F. had “anxiety disorder, attention deficit, pareni/child | Relationships and neglect of a child”; and S.F. had “adjustment disorder with mixed disturbance of emotions and conduct, neglect of a child, sexual abuse, alleged sexual abuse of a child victim and ADHD.” She opined that it was in the children’s best interest for appellant’s parental rights to be terminated.

Ms. Williams testified that, although appellant completed parenting classes and attended visitation with the children that was offered before he left Arkansas, it would be detrimental to the children to be placed in his custody. She said that he did not submit to a drug and alcohol assessment and that the one time he was drug tested, which occurred after he claimed that he had attended drug and alcohol treatment, he tested positive for marijuana. She testified that she attempted to get records from Ozark Guidance and Counseling, where appellant claimed to have been treated, but was unable to obtain any records. She also testified that appellant had continually moved around. Testimony at the hearing indicated that, since the case began, appellant had lived in Springdale, Arkansas; Battiest, Oklahoma; Van Burén, Arkansas; and four places in North Carolina. At the time of the termination hearing, he and his wife were living with his wife’s two teenage children in a three-bedroom, one-bath trailer in North Carolina. According to Ms. Williams, she had initiated an ICPC home study and had been told by the worker from North Carolina that it had been denied, although she had not received the report at the time of the termination hearing. Ms. Williams also testified that appellant’s wife had a “true finding in the State of Arkansas for allowing a child to have marijuana.” Finally, she testified that the children were adoptable.

| ¡Appellant testified that he had attended counseling at Ozark Guidance and Counseling when he lived in Springdale, Arkansas, including counseling for drug and alcohol abuse. He testified that he had a diagnosis of paranoid schizophrenia, which was diagnosed when he was a child, and that some of the counseling was also for this condition. He said that his paranoid schizophrenia was under control with medication at the time of the hearing. He testified that he did recall someone doing a home study, but he did not know why it would have been denied. He also said that he was not sure what were the medical diagnoses of H.F., S.F., and N.F.

Finally, appellant’s wife, Janet, testified that she had been married to appellant for four years. She testified that she was under a doctor’s care for degenerative disc disorder and had applied for social-security disability. With regard to appellant’s drug use, she testified that “her understanding” was that Ozark Guidance and Counseling had addressed drug and alcohol issues in his counseling for schizophrenia when they lived in Springdale. She said that, although appellant had used marijuana once a day until the last two months, he no longer needed it because his medication for schizophrenia had been changed.

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Bluebook (online)
426 S.W.3d 483, 2013 Ark. App. 88, 2013 WL 529857, 2013 Ark. App. LEXIS 94, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fenstermacher-v-arkansas-department-of-human-services-arkctapp-2013.