Henderson v. Arkansas Department of Human Services

377 S.W.3d 362, 2010 Ark. App. 191, 2010 Ark. App. LEXIS 187
CourtCourt of Appeals of Arkansas
DecidedFebruary 24, 2010
DocketNo. CA 09-1135
StatusPublished
Cited by14 cases

This text of 377 S.W.3d 362 (Henderson 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
Henderson v. Arkansas Department of Human Services, 377 S.W.3d 362, 2010 Ark. App. 191, 2010 Ark. App. LEXIS 187 (Ark. Ct. App. 2010).

Opinion

DAVID M. GLOVER, Judge.

|,The Benton County Circuit Court terminated the parental rights of appellants Merilee Henderson and Jeremiah Devon in their son, S.D. (born December 28, 2006). Henderson seeks reversal, arguing that termination was not in S.D.’s best interest and that no grounds for termination existed. Devon’s counsel has filed a no-merit brief and motion to withdraw pursuant to Linker-Flores v. Arkansas Department of Human Services, 359 Ark. 131, 194 S.W.3d 739 (2004), and Ark. Sup.Ct. R. 6-9(i). Counsel lists the termination decision as the only adverse ruling below and states that there are no issues of arguable merit for appeal. Our clerk’s office mailed a copy of the brief and motion to Devon’s last known address, informing him of his right to submit points for reversal. Devon has filed no pro se points. For | ¡>the reasons explained below, we affirm the termination order as to both appellants and grant Devon’s counsel’s motion to withdraw.

The case began when the Arkansas Department of Human Services (“DHS”) sought emergency custody of S.D., based on the following events described in DHS’s affidavit. On March 27, 2008, a sheriffs deputy investigated a domestic disturbance at appellants’ home and found appellants “wrestling around” when he arrived. Appellant Henderson appeared to be under the influence of drugs, had a fresh blood blister on her arm consistent with drug use, and said she had injected Oxycontin the previous night. Henderson also admitted to a prior methamphetamine addiction, and Devon reported having a serious drinking problem. Authorities arrested appellants for domestic assault and charged Henderson with obstructing governmental operations. EMS personnel took S.D., who had been sick for several days, to the hospital, where medical personnel diagnosed him with inner-ear and upper-respiratory infections.

On March 31, 2008, the trial court granted emergency custody of S.D. to DHS. After finding probable cause for S.D.’s removal from the home, the court adjudicated the child dependent-neglected, noting appellants’ stipulations that they suffered from drug or alcohol addictions and that they lacked stable and appropriate housing and employment. The court set a goal of reunification and adopted DHS’s recommendations for appellants, including counseling, parenting classes, visitation with S.D., random drug testing, AA/NA meetings,_J^appropriate housing and employment, and, in Henderson’s case, a drug- and-alcohol assessment. The court later added requirements that appellants obtain psychological evaluations and complete inpatient drug treatment.

Through two ensuing review periods, the court continued the goal of reunification, despite appellants testing positive for drugs, being inconsistent in visiting S.D., missing counseling appointments, and not documenting their attendance at AA/NA meetings or parenting classes. On February 10, 2009, the court held a permanency-planning hearing that changed the goal of the case to termination of parental rights. The court found that appellants had been dismissed from intensive family services for missing half of their appointments; that Henderson was incarcerated and had not completed a psychological evaluation or in-patient drug treatment; that Devon had not proved attendance at AA/NA meetings or parenting classes as ordered; and that Devon had missed or was late to his visits with S.D. The court held a termination hearing on May 29, 2009.

Devon’s no-merit appeal

At the termination hearing, Devon testified that he lived with his mother and stepfather and that he had been employed for one month. He said that he had been cited the previous week for owing several thousand dollars in child support and that he was arrested in February 2009 for leaving the scene of an accident. Devon said that he stopped attending sessions with one counselor because he did not like the counselor’s “actions” and that he |4missed nine or ten visits in a row with another counselor due to medical problems or being too depressed to get out of bed. Devon acknowledged that he had not undergone sufficient counseling to address his issues. He additionally admitted to giving false answers on his psychological evaluation, stating that he lost interest and wanted to “go home and lay down.” Devon further testified that he had not completed parenting classes and that he had lost interest in visiting S.D., having attended only three of the last fourteen scheduled visits.

Dr. Martin Faitak, who conducted Devon’s psychological evaluation, testified that Devon’s test scores were above average for anxiety, depression, psychotic experiences, suicidal ideation, aggressive attitude, thought disorder, and egocentricity. Dr. Faitak said that Devon reported previous arrests for alcohol-related and domestic-violence offenses and that Devon stated that he was violent only when he was inebriated.

Family service worker Stephanie Cochran testified that a home study on Devon’s mother’s residence was not approved. She also said that Devon had missed numerous visits with S.D., missed several counseling sessions, and had not actually worked as a ranch hand in recent months, as he claimed. Paige Stephens of the Ozark Guidance Center testified that Devon had not seen a therapist since February 10, 2009, and that he had missed or canceled several appointments since that date. Documentary evidence reflected that Devon tested positive for marijuana on July 25, 2008, and on August 1, 2008, during a visit with S.D. DHS also produced evidence that S.D.’s foster parent wanted to adopt him.

| ¿After a careful review of the record, counsel’s brief, and the above evidence, we find that counsel has complied with the Arkansas Supreme Court’s requirements for no-merit appeals in termination cases, and we conclude that Devon’s appeal is wholly without merit. See Staley v. Ark. Dep’t of Human Sens., 2009 Ark. App. 694, 2009 WL 4654776. We therefore affirm the termination order as to Devon and grant counsel’s motion to withdraw.

Henderson’s merit appeal

Henderson testified at the termination hearing that she was arrested for possession of a controlled substance and possession of drug paraphernalia approximately sixty days after S.D. was taken into custody by DHS. As a result, she was incarcerated in a residential treatment facility beginning in November 2008. Henderson stated that she received a two-year sentence but that, if she completed her long-term drug-treatment program, she could be released in August 2009. She testified further that she was currently working on the fourth step of an AA program and that she had been appointed to a position of responsibility at the treatment facility four weeks earlier. She provided documentation that, in the few months prior to the termination hearing, she completed parenting classes, money-management training, and various workforce-preparation seminars. According to Henderson, she had housing and a job available upon her release, although she would “have to go apply” for the job. She acknowledged that neither she nor Devon had been employed when S.D. was taken into DHS custody. Henderson also stated that she wanted to attend community college and |ñthat she had completed her financial aid application.

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Bluebook (online)
377 S.W.3d 362, 2010 Ark. App. 191, 2010 Ark. App. LEXIS 187, Counsel Stack Legal Research, https://law.counselstack.com/opinion/henderson-v-arkansas-department-of-human-services-arkctapp-2010.