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Whitt v. Arkansas Dep't of Human Servs.

Court of Appeals of Arkansas, Division IV

September 3, 2014

GREGORY WHITT, APPELLANT,
v.
ARKANSAS DEPARTMENT OF HUMAN SERVICES and MINOR CHILDREN, APPELLEES

APPEAL FROM THE WASHINGTON COUNTY CIRCUIT COURT. NO. JV-13-404. HONORABLE STACEY ZIMMERMAN, JUDGE.

Leah Lanford, Arkansas Public Defender Commission, for appellant.

Tabitha Baertels McNulty, Office of Policy and Legal Services, for appellee.

Chrestman Group, PLLC, by: Keith Chrestman, attorney ad litem for minor child.

HARRISON and GRUBER, JJ., agree.

OPINION

Page 34

RHONDA K. WOOD, Judge.

Gregory Whitt appeals from the circuit court's order granting Jennifer Shirley permanent custody of their three children at a dependency-neglect review hearing and closing the case. We hold that the court erred when it found that granting Jennifer permanent custody was in the children's best interest. We accordingly reverse and remand.

In June 2013, the Department of Human Services (DHS) exercised a 72-hour hold on Gregory Whitt's three children after he had been arrested for domestic violence, public intoxication, and endangering the welfare of a minor. The children's mother, Jennifer Shirley, was living in Florida at the time. Gregory had obtained custody of the three children by an August 2012 agreed order.

The children were placed in foster care, and the circuit court later adjudicated the children dependent-neglected. In its adjudication order, the court made the following findings regarding the night the children entered DHS's custody: Gregory and his girlfriend were drunk when the police arrived at their house; Gregory placed one of the children between him and the door to prevent the police from entering; and his girlfriend had a bloody lip.

At the hearing, the court ordered the children to remain in foster care. A no-contact order was already in place between Gregory and his children. The court ordered Gregory to undergo counseling and be drug tested. Jennifer, appearing at the hearing via telephone, was ordered to submit to a hair-follicle test, undergo a psychological evaluation, and be present at the next review hearing.

The court held the six-month-review hearing in October 2013. Both Gregory and Jennifer appeared; neither was represented by counsel. The first witness was Ritchie McFarland, the family-service worker. He testified that Gregory had completed counseling but had failed a drug test. McFarland recommended that the children stay in foster care. He had concerns regarding Gregory, who had said he knew where the foster parents lived and " would get his children back the legal or the illegal way." Gregory made desultory attempts to cross-examine McFarland. And, in what would become a recurring motif, the court admonished Gregory to stay on point and ask relevant questions.

Gregory and Jennifer also testified, and the following facts were presented to the court. Jennifer lived in Florida with Gregory's brother, David Whitt. The two were not, however, in a relationship. Further, both the maternal and paternal grandmothers lived in Florida. Jennifer did not have a job and instead stayed home to care for her and Gregory's youngest child. (Per the August 2012 ...


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