Johnson v. Arkansas Department of Human Services

82 S.W.3d 183, 78 Ark. App. 112, 2002 Ark. App. LEXIS 372
CourtCourt of Appeals of Arkansas
DecidedJune 26, 2002
DocketCA 01-1093
StatusPublished
Cited by33 cases

This text of 82 S.W.3d 183 (Johnson 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
Johnson v. Arkansas Department of Human Services, 82 S.W.3d 183, 78 Ark. App. 112, 2002 Ark. App. LEXIS 372 (Ark. Ct. App. 2002).

Opinions

ohn B. Robbins, Judge.

Appellant Lovell Johnson II appeals the termination of his parental rights as to three young boys, Marquis, Lovell III, and Ladarius, as entered by the Pulaski County Circuit Court on June 29, 2001. The boys were approximately one year apart in age and under school-age when parental rights were terminated. The mother does not appeal. As appellant’s sole point for reversal, he argues that the chancellor was clearly erroneous in finding that the Department of Human Services (“DHS”) made a meaningful effort to rehabilitate the home and correct the conditions that caused removal of the children. More specifically, appellant asserts that DHS did not provide sufficient services to him such that the statutory grounds to support termination found in Ark. Code Ann. § 9-27-341 (b) (3) (B)(i) (a) are not met. We disagree and affirm.

The three children involved- in this case were born on April 2, 1996 (Marquis), June 5, 1997 (Lovell III), and August 12, 1998 (Ladarius). The current appeal stems from the second case file opened on the family. The first case file was opened on December 29, 1997, after Lovell III was referred by a doctor, who was treating the mother, to Arkansas Children’s Hospital. Lovell III was suffering from extreme malnourishment, unnoticed by the parents. Lovell III was diagnosed with failure to thrive, caused by the parents feeding the infant watered-down formula. The family was given services, including psychological examinations and therapy, in-home parenting classes, transportation, and supervised visitation. Appellant was ordered to complete paternity testing because he claimed the children as his own but had not been adjudicated to be their father. Appellant did not establish paternity. The first case was closed from the court’s perspective some time in 1998.

The second case file was opened on November 4, 1999, after appellant dropped the mother and the three boys, ages three, two, and one at the time, at a Salvation Army Shelter in Little Rock, Arkansas, without informing the mother of his whereabouts. The mother called DHS, and a case worker initiated another case file on the family. DHS took emergency custody of the children on November 9, 1999. A hearing was conducted on November 16, 1999, at which probable cause was found to continue the children in the custody of DHS because, despite services rendered, the family had no means to support the children. The children were placed together in a foster home, where they remained throughout the case.1

An adjudication hearing was set for January 4, 2000, and commenced on that date. The children were found to be dependent-neglected, but not due to poverty per se. Both parents appeared, and it was demonstrated that they lived together at the Heritage House Inn, a motel; that they had a prior DHS case on Lovell III; that appellant had been directed to establish his paternity in the earlier case by an order on January 29, 1998, but had not done so; that appellant was working but the mother was not; and that they somehow could not manage the income earned by appellant. Appellant testified that he did not want to be tested for paternity because he wanted to avoid a child support obligation, and the trial judge informed appellant that reunification services were not going to be offered to him unless and until he proved paternity other than by his verbal claim. The case was continued to May 23, 2000, for purposes of permanency planning.

At the permanency planning hearing, the testimony established that the mother and appellant were living in the Cimmaron Motel, and the mother was pregnant again. Appellant told the judge that he was “gonna handle” the paternity testing but just could not get it done up to that point due to his work schedule. Services, including parenting classes, therapy, transportation, and visitations were provided to the mother, and the children received services in foster care. Due to the obvious cash-flow problem, the trial judge ordered random drug testing of the parents.2 A termination hearing was set for November 14, 2000, unless circumstances changed.

On November 14, 2000, the termination hearing was held. Both parents were represented by counsel at this point. Appellant appeared but the mother did not. She had fled to Texas to give birth. Although her rights were terminated, that is not the subject of this appeal. Evidence presented at the termination hearing relevant to appellant demonstrated that appellant tested positive for cocaine on June 28, 2000, and that he was arrested on charges of aggravated robbery and theft of property on July 18, 2000, with regard to a gas station in southwest Little Rock. Appellant’s counsel argued that sufficient services were not rendered to appellant such that his rights should not be terminated. The judge held termination in abeyance with regard to appellant, who was currently jailed, so that he could receive some services as best as they could be administered. Services to be rendered included parenting classes, a housing referral, a therapy referral, a drug and alcohol assessment and screening, and a second psychological evaluation.3 Appellant was ordered, again, to prove his paternity. A permanency planning hearing was set for March 6, 2001.

At the March hearing, it was learned that appellant was convicted of his charges and was sentenced to ten years in prison, of which he would have to serve at least seventy percent. He was appealing.4 Appellant had undergone a second psychological evaluation by Dr. DeYoub. The results were poor; appellant had borderline intellectual functioning and a personality disorder. Dr. DeYoub was concerned because appellant had not made any progress over the last year, and in the last six months he had been incarcerated. Dr. DeYoub opined that if appellant had not been incarcerated and the children were placed with him, he would likely flee Arkansas and probably go to Texas. Dr. DeYoub did not recommend reunification but suggested drug screens if appellant were released. He summarized, “I thought at one point his prognosis was good, but this has changed over time with the demonstration that he has not done well.” Appellant had also undergone a drug and alcohol assessment. DHS and the attorney ad litem for the children requested to move forward to termination. A formal motion was filed on March 19. The judge agreed, setting the termination hearing for May 22, 2001.

At this hearing, appellant argued that though he had not established paternity, he wanted more time to see how his appeal would be resolved and wanted DHS to provide additional services. Appellant had received services for six months. DHS resisted his request. DHS personnel testified that the children had been out of the home for approximately one and one-half years, they were together, and they had a high probability of being adopted together, but this would diminish as they got older. The judge terminated appellant’s parental rights, noting among other things that reunification could hot be accomplished in a reasonable period of time with his criminal conviction and incarceration. The judge also found that even without the incarceration, appellant could not be reunited with his children in a reasonable period of time. The judge found that appellant had not complied with the case plan or orders of the coúrt, whereas DHS had complied with the orders and made reasonable efforts to deliver reunifica-tions services. An order of termination followed, and this appeal resulted.

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Cite This Page — Counsel Stack

Bluebook (online)
82 S.W.3d 183, 78 Ark. App. 112, 2002 Ark. App. LEXIS 372, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-v-arkansas-department-of-human-services-arkctapp-2002.