Kinard v. Arkansas Dept. of Human Services

375 S.W.3d 704, 2010 Ark. App. 423, 2010 Ark. App. LEXIS 434
CourtCourt of Appeals of Arkansas
DecidedMay 12, 2010
DocketNo. CA 10-67
StatusPublished

This text of 375 S.W.3d 704 (Kinard v. Arkansas Dept. 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
Kinard v. Arkansas Dept. of Human Services, 375 S.W.3d 704, 2010 Ark. App. 423, 2010 Ark. App. LEXIS 434 (Ark. Ct. App. 2010).

Opinion

DAVID M. GLOVER, Judge.

| Appellant, Tammy Kinard, appeals from an order terminating her parental rights in her daughter, J.K. Her sole argument for reversal is that the circuit judge erred in viewing her home during the termination hearing. We hold that the court’s view was contrary to Arkansas law but that the error was harmless in light of the other evidence in the case. We therefore affirm the termination order.

On November 4, 2007, the Fort Smith Police Department received a report that eight-year-old J.K. was alone at a grocery store, lost and unable to cross Rogers Avenue. J.K. had a Subway sandwich and a note from appellant containing the Subway order. A police officer took J.K. home and found appellant lying on a bed and living in a foul-smelling environment. Appellant told the officer that she wanted to send J.K. to Wal-Mart at that |2point, but the officer advised that it was probably not safe for her to go alone. According to the Arkansas Department of Human Services (“DHS”), a representative from J.K’s school reported that J.K. was responsible for taking care of all housework and expressed a desire to be in foster care. Four days later, DHS caseworkers went to appellant’s apartment, and appellant answered the door in a nightgown that appeared to be covered with feces. The caseworkers observed that the house was in disarray, had a bad odor, and was filled with flies. They additionally discovered that appellant had not been giving J.K. her prescribed medication. When the workers advised appellant that they planned to exercise a seventy-two-hour hold on J.K., appellant stated that if J.K. did not want to come home, appellant would “sign the papers because I am a grown woman and I don’t need that in my life.” DHS was aware of the family’s history: J.K. was in foster care for more than a year in 2004-05 due to physical abuse, inadequate housing, neglect, and “caretaker unable to cope,” and another case was opened in March 2007 because J.K. was being locked in her room each night from 7:00 p.m. until time for school the next day. Based on these circumstances, DHS sought emergency custody of J.K. The circuit court granted DHS’s custody petition on November 13, 2007.

Thereafter, the court found probable cause for J.K.’s removal from the home and adjudicated J.K. dependent-neglected based on lack of supervision. The court established a goal of reunification and directed appellant to maintain stable and appropriate housing and income; to complete parenting classes; to undergo a psychological evaluation and complete |srecommended counseling; to maintain transportation; to visit J.K. regularly; and to participate in family counseling if recommended by J.K.’s therapist.

On June 5, 2008, the court conducted a review hearing, after which it maintained the goal of reunification. The court found that appellant had partially complied with the case plan and court orders but had not completed parenting classes or undergone a psychological evaluation. The court ordered appellant to perform those tasks and to undergo an examination to determine her physical ability to care for J.K. A permanency-planning order entered five months later maintained the goal of reunification and reiterated appellant’s obligations.

The court’s next order, following an April 2009 hearing, changed the goal of the case to termination of parental rights. The court found that appellant had lost her means of transportation, failed to' attend counseling, missed visits with J.K., and refused to allow DHS and CASA representatives to inspect her home. DHS filed a petition to terminate appellant’s parental rights, and a termination hearing took place on September 28, 2009.

At the hearing, J.K.’s therapist, Kim Davis, testified that she had recommended stopping appellant’s visitation with J.K. Davis described a DVD she had seen of one visit in which appellant apparently spilled nail polish on the floor, chastised J.K. about being responsible for it, made J.K. clean up the spill, critiqued her cleaning efforts, mentioned money to replace the spilled bottle,, and declared that “they are going to throw us the hell out of here.” Davis said that J.K. was in tears over the incident.

|4CASA director Glenda Evans testified that she facilitated visits between appellant and J.K. and videotaped the visits as required by court order. She presented the court with a videotape of some representative visits including the nail-polish incident, which Evans said went on for “a very long time.” Another visit involved a child who was playing with J.K. and whom appellant asked, “[Wjhat’s wrong with you?” When the child hesitantly replied that she had cerebral palsy, appellant stated that God punishes people by giving them diseases. During another visit, J.K., who was by then ten years old, had gotten a haircut that she requested herself. When appellant saw the haircut, she criticized J.K. in a manner that Evans described as cruel and that went on so long that Evans eventually asked appellant to stop. Yet another visit found appellant upset over a small hole in J.K.’s blouse, which she photographed “to let the judge see how [J.K.] comes to these visits.” According to Evans, no supporting and loving relationship existed between appellant and J.K., and she described the relationship as strange, with J.K. acting like a three-year-old around appellant and engaging in inappropriate kissing and touching. Evans said that she had recommended in the past that visitation be suspended and that she now recommended termination of appellant’s parental rights.

Evans also produced a series of photographs taken on April 15, 2009, which was the last time before the termination hearing that CASA was able to obtain access to appellant’s home. Evans testified that the photographs showed that appellant’s bed was very dirty with feces on it; that there were feces all over the commode; and that there were other unkempt and cluttered areas. Appellant objected that the pictures were “five or six months old,” at |fiwhich point DHS’s attorney suggested that the court take a recess and visit appellant’s home. The court did so with all counsel, appellant, and the bailiff present. Appellant voiced no objection.

Following the visit, the hearing resumed and appellant took the stand. She acknowledged that her apartment was not appropriate at the time of trial and that it was “a mess” because she was depressed and did not expect J.K. to return home immediately. Appellant also stated that her home had less food in it than it did in April and that she believed that the toilet “looked worse today than it did in April.” Regarding other matters, appellant testified that she had prescriptions for several medications and was under “medication management” with her doctor. However, she said that, even though she was supposed to return to her doctor six months after her last appointment in January 2009, she had not done so. Appellant also admitted that her last counseling appointment had been on April 30, 2009. Her therapy records indicated that she had been discharged for noncompliance on that date; that her diagnosis included “possible delusions”; that her mental-health symptoms increased in February; and that she did not attend day treatment as recommended.

Appellant’s testimony also demonstrated her propensity for delusional and paranoid thinking. She stated that she told her therapist that God promised to provide her with diamonds and that she had obtained a $12,000 ring for $150.

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Bluebook (online)
375 S.W.3d 704, 2010 Ark. App. 423, 2010 Ark. App. LEXIS 434, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kinard-v-arkansas-dept-of-human-services-arkctapp-2010.