Horton v. Arkansas Department of Human Services

2017 Ark. App. 633, 537 S.W.3d 740, 2017 Ark. App. LEXIS 706
CourtCourt of Appeals of Arkansas
DecidedNovember 15, 2017
DocketCV-17-561
StatusPublished
Cited by1 cases

This text of 2017 Ark. App. 633 (Horton 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
Horton v. Arkansas Department of Human Services, 2017 Ark. App. 633, 537 S.W.3d 740, 2017 Ark. App. LEXIS 706 (Ark. Ct. App. 2017).

Opinion

WAYMOND M. BROWN, Judge

| í Appellant appeals from the termination of her parental rights to E.H., born 09/01/2015. 1 On appeal, she argues that the circuit court erred in (1) terminating her parental rights based on the failure-to-remedy ground, (2) finding that DHS had shown the subsequent-factor ground, and (3) denying her motion for a second psychological evaluation as. untimely. We affirm.

I. Facts

The hotline was called on October 7, 2015, due to concerns that E.H. was not being fed properly. According to family service worker (FSW) Laura Case, appellant could explain how to mix E.H.’s formula, but “could not do it in practice.” Appellant reported that she fed E.H. four ounces of formula every two hours, which was appropriate. However, FSW I Jennifer Williams reported “major concerns” regarding whether E.H. was being properly fed because she was being weighed regularly with no weight gain.

Dr. Sara Robinson admitted E.H. to the hospital on October 14, 2015, for failure to thrive due to not being fed properly; she wanted to observe appellant feeding E.H. and wanted E.H. to be weighed daily. 2 There was “concern for [appellant’s] mental capacity as it relates to her ability to care for E.H.” Appellant was “on SSI for léarning disabilities” that reportedly affected her ability to read and write. A seventy-two-hour hold was taken on E.H. on October 14, 2015, due to her failure-to-thrive diagnosis. Appellee. Arkansas - Department of Human Services (DHS) filed a petition for emergency custody and dependency-neglect on October 19, 2015, which was granted by the' circuit court’s ex parte order for emergency custody entered on the same date.

A probable-cause order was entered on October 21, 2015, finding probable cause that emergency conditions existed that necessitated E.H.’s removal and that those conditions continued. In its December 8, 2015 adjudication and disposition order, the circuit court adjudicated E.H. dependent-neglected “as defined in the Arkansas Juvenile Code” and made specific findings. Appellant was ordered to complete a number of standard duties, including submitting to a psychological evaluation and following any recommendations. DHS was ordered to provide “specialized parenting classes to [appellant] to .focus on raising a baby.” Tammy Tolleson, appellant’s mother, was added to the case plan “since [appellant] lives |awith her and [Tolleson] participated in caretaking for [E.H.] before the hold was taken.” The goal of the case was reunification.

In its February 24, 2016 and August 12, 2016 review orders, the goal of the case remained reunification. In the latter review order, the circuit court found:

That [appellant] has complied with the caseplan -in that she has submitted to a psychological evaluation, completed specialized parenting classes and attended counseling. The psychological evaluation determined that [appellant] is functionally illiterate, that she cannot live independently and requires supervision of her child care. The maternal grandmother has agreed to act as a supervisor of [appellant’s] child care[.]

DHS agreed to allow appellant to have visitation with E.H. “during the week, with the child to return to the foster home on weekends.” The circuit court gave DHS the authority to begin a trial placement if the visitation went well.

On December 6, 2016, appellant filed a motion for a second psychological evaluation and a motion for a continuance. She requested that a second and independent psychological evaluation be performed as a reasonable accommodation pursuant to the Americans with Disabilities Act. 3 She asserted that the first psychological evaluation had been completed before she submitted to services and provided “little flexibility for [appellant] and DHS to achieve a form of reunification.” She asserted that it would be prejudicial to her to use only the initial psychological examination “[g]iven that [she] has submitted to services; given that she is a disabled individual entitled to a reasonable accommodation pursuant to the ADA; and given that the State has a policy that mental incapacity is a basis for termination of parental rights.”

|40n December 8, 2016, DHS filed a petition for termination of appellant’s parental rights, citing two grounds. The first ground was failure to remedy the cause for removal. 4 DHS stated that “[a]lthough [appellant] completed the tasks in the case plan, she ha[d] not successfully utilized the skills she learned the parenting classes, counseling or from homemaker services.” It also noted that E.H. had a “continuous problem” with diaper rash that was “constant and worsening” and that appellant gave incorrect instructions on the application of the prescription provided for the rash, after DHS suggested—and she went—to the doctor. DHS’s second asserted ground was the other-factors ground. 5 It went on to state that during the trial home placement, appellant “did not provide the most basic care for her child resulting in circumstances that were contrary to the juvenile’s health, safety or welfare.”

On December 9, 2016, the circuit court entered its permanency-planning order in which it changed the goal of the case plan to adoption. It noted testimony from Nancy Mondragon, employed by First Kids Daycare, that (1) E.H. would be brought to daycare “dirty”;' (2) E.H. would “exude an odor” requiring workers to “wipe down her whole ’ b'ody with baby wipes”; and (3) appellant would bring bottles of “regular milk”—before E.H. turned one—in a bottle that would be “dirty and crusted with milk.” Mondragon stated that workers had spoken with appellant “several times about the .cleanliness of the bottle and the fact that they could not give a child regular milk before the child’s first birthday,” yet [¡¡appellant “continued to bring a dirty bottle with regular milk.” The circuit court found Mondragon’s testimony “very credible.”

It also noted testimony from FSW Carol Harp that appellant had complied with the case plan and court orders, leading to a trial home placement, but E.H. was removed from the placement on September 23, 2016. She noted visiting appellant’s home on that day—which was “very hot”— and seeing various safety hazards including a fan without a cover blowing on E.H. Appellant had claimed that the cover was only missing because she had washed it and it was drying, but FSW Bridget Warren had reported seeing the same safety hazard during her visit the previous day. Appellant had obtained, a prescription-strength diaper cream for E.H. and had advised daycare workers—and stated to Harp—that it was to be applied at “every” diaper change, but the bottle said twice per day. Furthermore, she testified that appellant intended to give E.H. baby Ora-jel without consulting doctor, though the box advised not doing so for a child under two; and that she was concerned about Tolleson’s ability to supervise appellant’s parenting because Tolleson has a prescription for and was taking “multiple hydroco-done pills per day.” 6

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Cite This Page — Counsel Stack

Bluebook (online)
2017 Ark. App. 633, 537 S.W.3d 740, 2017 Ark. App. LEXIS 706, Counsel Stack Legal Research, https://law.counselstack.com/opinion/horton-v-arkansas-department-of-human-services-arkctapp-2017.