Keckler v. Arkansas Department of Human Services

383 S.W.3d 912, 2011 Ark. App. 375, 2011 Ark. App. LEXIS 412
CourtCourt of Appeals of Arkansas
DecidedMay 25, 2011
DocketNo. CA 10-1075
StatusPublished
Cited by3 cases

This text of 383 S.W.3d 912 (Keckler 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
Keckler v. Arkansas Department of Human Services, 383 S.W.3d 912, 2011 Ark. App. 375, 2011 Ark. App. LEXIS 412 (Ark. Ct. App. 2011).

Opinion

JOHN MAUZY PITTMAN, Judge.

[ jThis is an appeal from an order terminating a pending dependency-neglect case and changing custody of a minor from his mother, appellant Katherine Keckler, to his father, appellee Eduardo Kriete. The minor, D.D., was seven years old when he was adjudicated dependent-neglected in October 2008. Appellant argues that the trial court erred in granting custody to Mr. Kriete because the evidence is insufficient to support an order changing custody either under the juvenile code or in a traditional change-of-custody procedure. We affirm.

Our review of equity matters, such as juvenile proceedings, is de novo on appeal, although we do not reverse unless the circuit court’s findings are clearly erroneous. Coleman v. Arkansas Department of Human Services, 2010 Ark. App. 851, 379 S.W.3d 778. A finding is clearly erroneous 1¿when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed. Id. We give due deference to the superior position of the circuit court to view and judge the credibility of the witnesses. Judkins v. Duvall, 97 Ark.App. 260, 248 S.W.3d 492 (2007). This deference to the circuit court is even greater in cases involving child custody, as a heavier burden is placed on the circuit judge to utilize to the fullest extent his or her powers of perception in evaluating the witnesses, their testimony, and the best interest of the children. See id.

Here, the record shows that D.D. and his two siblings were adjudicated dependent-neglected in October 2008 because appellant’s home was unfit, the children had inadequate food, and because appellant had left these young children home alone overnight. In January 2009, the Arkansas Department of Human Services (DHS) sought emergency custody of the children because appellant was incarcerated in the Fordyce jail for hot checks and had left the children with an inappropriate caretaker. The children were placed with their maternal grandparents, but during this time D.D. was repeatedly admitted to the Pinnacle Pointe Acute Hospital because of severe psychiatric and behavioral problems. These repeated hospitalizations led ultimately to D.D. being placed at Centers for Youth and Families in Monticello, Arkansas.

A report prepared by DHS for a review hearing on May 12, 2009, recommended that the case goal be reunification and that the children be returned to the custody of appellant, including D.D. once his placement at Centers for Youth and Families was complete. The | ..report noted, however, that appellant had not consistently maintained food and utilities in the home and that she had failed to pick up food at a food pantry on May 5 even though a DHS worker had arranged for the food to be available and the food pantry had stayed open one hour past closing time waiting for her to arrive. The report also noted that appellant was unemployed and that the family’s source of income was the child support of $700 per month that appellant received for D.D. from appellee Kriete, and that, following her drug screening on April 24, appellant tested positive for amphetamines. In his review order of May 15, 2009, the trial judge allowed appellant a thirty-day trial visit with the older children, but ordered that D.D. remain at Centers for Youth and Families to complete his program. Appellant was ordered to comply with the case plan, keep the home clean, maintain food in the home, submit a copy of paid utility bill receipts to DHS monthly, and ensure that the children get to school every day and counseling appointments as scheduled. The following month, the trial court entered a review order on June 9, 2009, returning custody of the children to appellant with a protective-services case to remain open. Appellant was ordered to comply with the requirements of the previous order, to submit to random drug screening, and to refrain from writing hot checks.

The children entered foster care again on October 8, 2009, because of physical abuse of D.D. by appellant, but were returned to appellant’s custody following a probable cause hearing on October 11, 2009. A report prepared by DHS for a November 10, 2009, review hearing stated that D.D. had run away from appellant’s home on several occasions because he |4was spanked for not doing his chores, and that he had an outburst on October 21, 2009, when appellant did not allow him to go for a walk with his older brother. Following the latter outburst, appellant applied restraints to D.D. as instructed by Centers for Youth and Families. Following another angry outburst by D.D. on November 1, 2009, appellant calmed the child within one hour. The November review hearing resulted in an order that services be continued and that all three children remain in the custody of appellant, but a report prepared for the review hearing of January 12, 2010, stated that D.D. had been readmitted to the Centers for Youth and Families as a result of behavior problems on December 17, 2009. These problems included stealing from a store and kicking out car windows. It was also reported that D.D. had been fighting staff at the facility, which asked appellant for consent to change D.D.’s medication. Appellant initially refused the request, but later changed her mind. Finally, the report stated that appellant had informed DHS that she had breast cancer. Following the January 12 hearing, attended by the attorney for D.D.’s father, appellee Eduardo Kriete, the trial court ordered that the children remain in appellant’s custody, that D.D. remain in the Centers for Youths and Families until released by staff recommendations, and ordered a home study for appellee Eduardo Kriete.

The DHS report for the review hearing of April 13, 2010, made no recommendation regarding the children’s placement. It noted that the ordered home study on appellee had been requested but not yet received. The report further noted that D.D.’s behavior had improved, that he was currently visiting his family at home every other weekend, that the | ^visits had all gone well, and that D.D. had been assigned a tentative discharge date of July 16, 2010, by Centers for Youth and Families. Finally, the report stated that appellant remained unemployed and that her income consisted of child support received for D.D., school-related grants, and food stamps. Following the review hearing of April 13, 2010, attended by appellee Eduardo Kriete in person as well as by his attorney, the trial court expressed dissatisfaction in appellant’s continued failure to learn from homemaker services, and stated that appellant was doing her children a disservice by telling them she has breast cancer, yet not seeking treatment. The trial court ordered that custody of the children remain in appellant with the goal of reunification, and granted permission to appellee, as D.D.’s father, to have visitation with D.D. at the Centers for Youth and Families upon approval of the therapist. D.D. was also permitted visitation with his siblings and stepmother from Mr. Kriete’s family.

On May 7, 2010, appellee Eduardo Kriete filed a motion for modification of custody in the dependency-neglect proceeding, asserting that he was the legal and biological father of D.D., that D.D. was currently in the legal custody of appellant and residing at the Centers for Youth and Families, and that appellant contacted him late in 2009 requesting that he take custody of D.D.

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Cite This Page — Counsel Stack

Bluebook (online)
383 S.W.3d 912, 2011 Ark. App. 375, 2011 Ark. App. LEXIS 412, Counsel Stack Legal Research, https://law.counselstack.com/opinion/keckler-v-arkansas-department-of-human-services-arkctapp-2011.