Nichols v. Arkansas Department of Human Services

2013 Ark. App. 504, 429 S.W.3d 342, 2013 WL 5269633, 2013 Ark. App. LEXIS 530
CourtCourt of Appeals of Arkansas
DecidedSeptember 18, 2013
DocketCV-13-413
StatusPublished
Cited by2 cases

This text of 2013 Ark. App. 504 (Nichols 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
Nichols v. Arkansas Department of Human Services, 2013 Ark. App. 504, 429 S.W.3d 342, 2013 WL 5269633, 2013 Ark. App. LEXIS 530 (Ark. Ct. App. 2013).

Opinion

ROBIN F. WYNNE, Judge.

h Nicole Nichols and Michael Nichols both appeal from the Sebastian County Circuit Court’s order terminating their parental rights to their child, E.N. (DOB 1-10-10). Nicole’s counsel has filed a motion to withdraw as counsel that is accompanied by a brief filed pursuant to Arkansas Supreme Court Rule 6-9 and Linker-Flores v. Arkansas Department of Human Services, 359 Ark. 131, 194 S.W.3d 739 (2004). Michael’s counsel has filed a merit brief. We affirm the circuit court’s termination order as to both appellants and grant the motion to withdraw as counsel.

E.N. was taken into custody by the Arkansas Department of Human Services (the Department) on April 2, 2011, after Michael was arrested for domestic battery and Nicole tested positive for methamphetamine, marijuana, and benzodiazepines. Following an ^adjudication hearing on May 16, 2011, the circuit court entered an order in which it adjudicated E.N. dependent-neglected “by reason of parental unfitness due to the parents’ drug abuse and domestic violence issues.” The goal of the case was set as reunification. After a review hearing in October 2011, the circuit court found that appellants had not complied with the case plan. Specifically, the circuit court found that they did not have stable housing, income, or transportation. Appellants also had not resolved their criminal charges, completed required classes, or visited with E.N. regularly. A permanency-planning hearing was held on March 12, 2012. In the permanency-planning order, the circuit court found that appellants had not been compliant with the case plan. The circuit court also found that Michael was sentenced to five years in prison in February 2012 on drug-related charges and had not been compliant with the case plan prior to his incarceration. The circuit court further found that, while Nicole had made some progress on the case plan, her activity had begun at the eleventh hour. In the order, the circuit court changed the goal of the case to termination of parental rights and adoption.

The Department filed a petition for termination of parental rights on June 26, 2012. In the petition, the Department alleged the following statutory grounds for termination: (1) that the juvenile has been adjudicated dependent-neglected and has continued to be out of the custody of the parents for twelve months and, despite a meaningful effort by the Department to rehabilitate the parents and correct the conditions that caused removal, those conditions have not been remedied; 1 (2) the juvenile has lived outside the home of the parents | sfor a period of twelve months and the parents have willfully failed to maintain meaningful contact with the juvenile; 2 (3) that other factors or issues arose subsequent to the filing of the original petition for dependency-neglect that demonstrate that return of the juvenile to the custody of the parent is contrary to the juvenile’s health, safety, or welfare, and that, despite the offer of appropriate family services, the parent has manifested the incapacity or indifference to remedy the subsequent issues or factors or rehabilitate the parent’s circumstances that prevent the return of the juvenile to the parent; 3 and (4) that the parents have subjected any juvenile to aggravated circumstances and that there is little likelihood that services to the family would result in successful reunification. 4

At the termination hearing, Nicole testified that she was living with her grandparents and earning an average of $250 per week taking care of her grandmother. Nicole finished parenting classes in February 2012, and was going to attend her “third or fourth” domestic-violence class on the day of the termination hearing. Nicole stated that she went to her psychological examination but did not stay because she was called stupid and told that she could not read. She attended drug-and-aleohol-treatment sessions but left because “[i]t was all about Christ.” Nicole insisted that it had been “a long minute” since she had used drugs. Nicole spent December 2011 in jail. She admitted to being charged with two drug-related offenses since the beginning of the case. At the time of the termination hearing, she was on |4a three-year deferred sentence out of Oklahoma for drug possession. In August 2012, she was sentenced to sixty months’ suspended imposition of sentence by the Sebastian County Circuit Court for possession of drug paraphernalia. She denied that she and Michael were together, but she was not sure whether they would get divorced. Nicole admitted that she had not visited her daughter for a three-month period pri- or to the termination hearing and explained that she did not visit because she was trying to get herself “mentally right.” Nicole testified that her plan was to continue living with her grandparents, where there would be a separate bedroom for E.N. She did not have a car or a valid driver’s license.

Michael testified that he was living alone in a house owned by his mother. Regarding his marriage to Nicole, he was going to “see how things go.” Michael stated that he was employed with M & R Roofing doing seasonal roofing and that he did not have income at the time of the hearing. He was in prison for nine months and was released on September 12, 2012. His total sentence was ten years, with five years deferred. He was on parole at the time of the hearing. He denied having any other criminal charges pending. Michael testified that he completed substance-abuse treatment, anger-management classes, parenting classes, and received his GED while he was imprisoned. He did not have a valid driver’s license.

Tandy Butler, the family services worker who had been assigned to the case since July 2012, testified that she attempted to contact Nicole three days prior to a scheduled hair-follicle test that had been ordered by the circuit court but was unable to contact her. When Ms. Butler called Nicole’s grandparents’ home, her grandfather said that he had not seen Nicole in two days.

|¡iKim Smith, the assistant to Dr. Nancy Powell, who was scheduled to perform Nicole’s psychological evaluation, testified that Nicole was initially angry, calmed down long enough to take one test, then became angry and started cursing. Ms. Smith denied saying anything to offend Nicole. Dr. Powell testified that she was unable to complete her interview with Nicole because Nicole left her office. Based on the portion of the examination that was completed, Dr. Powell gave Nicole a provisional diagnosis of schizophrenia. Dr. Powell also noted that she saw physical signs indicative of methamphetamine use.

Jackie Hamilton, the director of the Parenting Without Violence Program, testified that she received referrals on both appellants as a result of their criminal convictions. Nicole attended orientation on February 6, 2012, but only attended one class and did not return until September 24, 2012. Michael was referred on June 16, 2011, did not attend orientation, and came in to enroll on September 24, 2012. Hamilton testified that both appellants could have completed the program had they come in when they were referred.

Cathleen Hampton, Nicole’s mother, testified that E.N.

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Related

Henson v. Arkansas Department of Human Services
2014 Ark. App. 225 (Court of Appeals of Arkansas, 2014)
Nichols v. Ark. Dep't of Human Servs.
2013 Ark. App. 504 (Court of Appeals of Arkansas, 2013)

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Bluebook (online)
2013 Ark. App. 504, 429 S.W.3d 342, 2013 WL 5269633, 2013 Ark. App. LEXIS 530, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nichols-v-arkansas-department-of-human-services-arkctapp-2013.