Nicholas Myers and Myrtle Myers v. Arkansas Department of Human Services and Minor Child

2023 Ark. App. 46, 660 S.W.3d 357
CourtCourt of Appeals of Arkansas
DecidedFebruary 8, 2023
StatusPublished
Cited by10 cases

This text of 2023 Ark. App. 46 (Nicholas Myers and Myrtle Myers v. Arkansas Department of Human Services and Minor Child) 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
Nicholas Myers and Myrtle Myers v. Arkansas Department of Human Services and Minor Child, 2023 Ark. App. 46, 660 S.W.3d 357 (Ark. Ct. App. 2023).

Opinion

Cite as 2023 Ark. App. 46 ARKANSAS COURT OF APPEALS DIVISION III No. CV-22-480

NICHOLAS MYERS AND MYRTLE Opinion Delivered February 8, 2023 MYERS APPELLANTS APPEAL FROM THE WASHINGTON COUNTY CIRCUIT COURT [NO. 72JV-20-766] V.

HONORABLE DIANE WARREN, ARKANSAS DEPARTMENT OF JUDGE HUMAN SERVICES AND MINOR CHILD AFFIRMED APPELLEES

STEPHANIE POTTER BARRETT, Judge

Nicholas Myers and Myrtle Myers appeal the May 23, 2022 order of the Washington

County Circuit Court terminating their parental rights to their Minor Child (D/O/B

October 29, 2020). Nicholas and Myrtle challenge all three statutory grounds relied on by

the circuit court to terminate their parental rights. Myrtle additionally challenges the circuit

court’s finding that termination of her parental rights was in the best interest of the Minor

Child. We affirm.

I. Facts and Procedural History

This case began on December 10, 2020, when the Arkansas Department of Human

Services (“DHS”) responded to the Myerses’ home to assess the Minor Child’s safety

following allegations of drug abuse by both parents; inadequate supervision of the Minor Child; and abuse to Myrtle, a C5 quadriplegic, resulting in EMS services being called to

assess her condition. Upon arriving, DHS became concerned that Nicholas was actively high

due to his erratic behavior and the white foam building around his lips. DHS informed

Nicholas that a drug screen would be required. Nicholas stated he and Myrtle had used

methamphetamine two days prior, which Myrtle confirmed. DHS exercised a seventy-two-

hour hold on the Minor Child and filed a petition for emergency custody, which was granted.

On January 4, 2021, a probable-cause order was entered continuing custody of the

Minor Child with DHS. The circuit court found that DHS had made reasonable efforts to

prevent the Minor Child’s removal from the Myerses’ home and ordered supervised visits at

the DHS office twice a week for two hours each visit. The Minor Child was adjudicated

dependent-neglected in an order filed February 9, 2021, as a result of parental neglect and

inadequate supervision. On October 12, 2021, the first permanency-planning hearing was

held. The circuit court continued a goal of reunification and a concurrent goal of adoption

and noted Nicholas and Myrtle had recently acquired permanent housing. On January 24,

2022, a second permanency-planning hearing was held. The circuit court changed the goal

of the case to adoption, finding Nicholas and Myrtle had not demonstrated stability or an

ability to care for the Minor Child. On February 25, 2022, DHS filed a petition to terminate

Nicholas’s and Myrtle’s parental rights citing grounds of twelve-month failure to remedy,

subsequent factors, and aggravated circumstances—little likelihood; DHS also alleged that

termination was in the best interest of the Minor Child.

2 At the termination hearing held on April 12, 2022, Nicole Netherton, the family

service worker for this case, was the only witness called by DHS. 1 Ms. Netherton testified

that the Minor Child had been taken into DHS custody due to the parents’ illegal drug use.

She testified the Minor Child is developmentally delayed and currently receiving

occupational therapy, physical therapy, and speech therapy through his foster home. She

testified that both Myrtle and Nicholas had maintained contact with DHS but were in

minimal compliance with the case plan. She testified that neither parent had completed the

drug-and-alcohol assessment or started counseling until March, a month before the

termination hearing, and were not consistent in their visits with the Minor Child. She

testified that during the visits the parents did attend, Myrtle was unable to hold the Minor

Child for extended periods of time. Ms. Netherton testified that Nicholas was asked to come

in for weekly drug screens but provided no reason for his nonparticipation, missing thirty-

three out of forty-two screenings. Both parents were ordered to submit to a hair-follicle test,

but neither completed this request due to Nicholas’s inconsistencies with the screenings and

the difficulty in obtaining regular urinalysis samples from Myrtle because she requires

diapers. She testified that DHS provided three referrals to both Nicholas and Myrtle for the

hair-follicle testing and offered transportation, but they declined. Ms. Netherton testified

there was little likelihood that additional services to the Myers family would result in

1 At the beginning of Ms. Netherton’s testimony, DHS moved to admit the court report, a drug-screen log for Nicholas, a list of referrals made by DHS for the Myers family, the visitation log for Nicholas and Myrtle, and the psychological evaluations of Nicholas and Myrtle—all of which were admitted without objection.

3 successful reunification and recommended that the Minor Child stay in DHS custody and

parental rights of Nicholas and Myrtle be terminated.

Next, Nicholas testified virtually from Omega Supervised Sanction Center (“Omega”)

in Malvern, Arkansas. Nicholas testified he had been incarcerated at Omega since March 23,

2022, due to going over his parole points following a DWI arrest on March 12, 2022, and

he had an additional DWI arrest on February 5, 2022. Despite this, Nicholas testified that

substance abuse had not been a problem for him throughout this case. In regard to the DWI,

Nicholas testified that he did not abuse a substance because alcohol is legal. He testified that

he declined transportation from DHS for the hair-follicle testing because he had his own

transportation and was later unable to attend due to car trouble and limited funds for gas

money. When presented with DHS’s drug-screen log, Nicholas testified he attended all drug

screens he was asked to participate in. He further testified he never received voicemails from

DHS asking him to come in for drug screens. However, when Nicholas was asked why he

did not appear on multiple dates on which the drug-screen log indicated he was a no show,

Nicholas was unable to recall why he was not there or if he was contacted. The drug-screen

log further showed Nicholas tested positive for opiates and THC on May 25, 2021. Nicholas

testified that following the positive test result, he provided DHS with a picture of his

prescription bottle for the opiates, and he accidentally inhaled the THC when he “hit [his]

neighbor’s vape pen thinking it was tobacco.” Nicholas testified that Myrtle requires his

assistance in her daily living, and while the couple has some help from family, the majority

of the responsibility of caring for Myrtle falls to him. He testified he believes he and Myrtle

4 can safely parent the Minor Child if returned to their custody. However, Nicholas admitted

that while he is aware of “some” of the Minor Child’s special needs, he was not as

knowledgeable as he should be.

Myrtle was the last to testify. She testified she failed to complete a hair-follicle test

because she could not get transportation. Myrtle testified that Medicaid Transit would not

take her because the hair-follicle test was not a medical appointment, and DHS informed

her that it could not accommodate her wheelchair. However, Myrtle testified she was able to

travel to the hearing that day in a regular van, and DHS could have taken her in its regular

van as long as someone was there to transport her. She further testified she was unable to

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2023 Ark. App. 46, 660 S.W.3d 357, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nicholas-myers-and-myrtle-myers-v-arkansas-department-of-human-services-arkctapp-2023.